Timothy Blevens v. Cheryl Medrano

“[A]ctual notice in section 473.5 means genuine knowledge of the party litigant...[A]ctual knowledge has been strictly construed, with the aim of implementing the policy of liberally granting relief so that cases may be resolved on their merits.’” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 547 [Citations Omitted].) “[A] party can make a motion showing a lack of actual notice not caused by avoidance of service or inexcusable neglect . . .” (Trackman v. Kenney (2010) 187 Cal. App. 4th 175, 180.) “‘[I]t does not require a showing that plaintiff did anything improper...[T]he defaulting defendant simply asserts that he or she did not have actual notice’.” (Ibid.)

Defendants have failed to meet this burden, as neither of their declarations says anything about being unaware of the litigation as a result of the papers being left at their door and mailed to their residence. Nor does either declaration mention how they become aware of the case. Instead, they simply assert that the proof of service must be disregarded, because it got Ms. Medrano’s hair color and height wrong. Notably, the declarations do not deny a person left papers for them at their front door on the day they were served.

Defendants further seek relief under Code of Civil Procedure section 473, subdivision (b). Code of Civil Procedure section 473, subdivision (b), provides that the court may relieve a party from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. It must be made within 6 months after the judgment, dismissal, order, or proceeding was taken. Relief may be based either on an “attorney affidavit of fault,” in which event, relief is mandatory; or declarations or other evidence showing “mistake, inadvertence, surprise or excusable neglect,” in which event relief is discretionary. (Code Civ. Proc., § 473, subd. (b).)

With respect to discretionary relief under section 473, subdivision (b), the party moving for relief on the basis of “mistake, inadvertence, surprise, or excusable neglect” must show specific facts demonstrating that one of these conditions was met. (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410.) The burden is on the moving party to show that the neglect was excusable: i.e., that the default could not have been avoided through the exercise of ordinary care. (Jackson v. Bank of America (1983) 141 Cal.App.3d 55, 58.)

Here, defendants fail to demonstrate “mistake, inadvertence, surprise, or excusable neglect” for the same reasons that the Medrano’s submissions fail to demonstrate lack of actual notice with respect to Code of Civil Procedure section 473.5. 6

Once again, the entire factual premise of the Medrano’s basis to set aside default is that they observed a man dropping off papers by their front door, and the proof of service stating it was given to someone who did not fit Cheryl A. Medrano’s description. (Cheryl A. Medrano’s Decl., ¶¶1-6; Michael Medrano’s Decl., ¶¶1-6.) The Medrano’s declarations entirely fail to demonstrate “mistake, inadvertence, surprise, or excusable neglect,” as they do not explain how defendants reasonably ignored a summons and complaint left on their doorstep.

Finally, defendants seek relief under Code of Civil Procedure section 473, subdivision (d) arguing that “[t]he [default] judgement is void under California Code of Civil Procedure section 473(d). Service of summons must be made by personal delivery pursuant to CCP §415.10. Where service is not properly effected, the court lacks personal jurisdiction, and any resulting default judgment is void under CCP §473(d).” (Moving Papers, pg. 3:7-12.)

However, not only do the moving papers fail to articulate how the service was void, this Court has already ruled on this particular issue, when this Court denied the Medrano’s Motion to Quash Service of Summons, on November 20, 2025. (Linder Decl., Ex. F.)

Accordingly, the Medrano’s motion to set aside default is denied.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: SMC on 6/10/2026. (Judge’s initials) (Date)

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