Defendant’s Motion to Set Aside Judgment
16. Portfolio Recovery Associates, LLC, v. Coley, Case No. CIVSB2214509 Defendant’s Motion to Set Aside Judgment 6/10/26, 9:00 a.m., Dept. S-17
Tentative Ruling The Court would DENY. Case Summary This is a collections case. Plaintiff alleges maintained a credit account founded in writing with Plaintiff, with periodic billing, that required payment thereon. However, Plaintiff stopped paying on the account on February 10, 2020, leaving an open balance that is the subject of this suit. On July 12, 2022, Plaintiff filed suit for (1) account stated and (2) open book account. Relevant here, on September 9, 2022, Plaintiff filed a proof of service (POS) stating that Defendant was served at his home address. (See Compl., ¶11 & Exh.
A [billing showing address].) The POS indicates personal service on a “brown-haired white female”. Following service, Plaintiff took Defendant’s default, and a default judgment was entered on April 20, 2023. Now, approximately three years later, Defendant filed this instant motion seeking to vacate the judgment. Defendant alleges service was improper.
Analysis
To set aside a judgment pursuant to Code of Civil Procedure section 473.5(a), the motion for relief must be served and filed within a reasonable time, but in no event may exceed the earlier of: (1) two years after entry of a default judgment; or (2) 180 days after service of written notice that default or default judgment entered. Further, the motion must be accompanied by a copy of the answer or other proposed responsive pleading. (Code Civ. Proc., 473.5(b).) Here, the instant motion was filed on April 1, 2026, approximately three years beyond the default judgment.
Thus, the motion appears untimely. Further, it is procedurally defective since it was not accompanied by a copy of any proposed responsive pleading. Even in the alternative, however, the motion appears at first blush to be lacking: As a starting point, the filed proof of service shows service by a registered process server. The return of a registered process server is entitled to an evidentiary presumption of the facts stated in the return. (Evid. Code, § 647; Palmer Properties Inv., LLC, v Yadegar (2011) 194 Cal.App.4th 1419, 1427.)
Once the presumption is created, the burden shifts to the party contesting service to rebut the presumption through competent, contradictory evidence. (M. Lowenstein & Sons, Inc. v. Superior Court (1978) 80 Cal.App.3d 762, 770
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Here, perhaps tellingly, neither the original declaration nor the supplemental declaration contest actual1 notice of the lawsuit. Rather, the declaration indicates that he is not a female and that the POS indicates service on a female. (See Coley Supp. Decl., ¶4.) Defendant offers no evidence, other than his own unsupported statements, to substantiate his claims that the address was improper or that the POS description of “female” was anything other than a scrivener’s error. For instance, a dated lease agreement or mailed bills from the at-issue time period would have substantiated whether the claimed address was incorrect. Thus, even if the motion were timely (which it is not), Defendant has not currently offered sufficient competent, contradictory evidence to rebut the presumption of proper service.
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1 The Supplemental Declaration argues that Defendant was not “personally handed” any court documents. (Coley Supp. Decl., ¶3.) Similarly, the original Declaration does not say he was not served but, rather, that he was not “properly” served. (E.g., Coley Decl., ¶6.) Thus, the declarations appear to sidestep the issues of whether substitute service occurred or whether actual notice was none-the-less provided.
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