Motion to Vacate Dismissal and Enter Judgment
Case No. CL25-05738
Motion to Vacate Dismissal and Enter Judgment filed by Plaintiff
The court finds that service by mail of plaintiff’s motion to set aside / vacate the dismissal and enter judgment is inadequate.
Reflecting due process concerns, service of a motion affecting the rights of a defendant who has not appeared in an action, such as defendant Padilla in the present case, is typically required to be made in the same manner as required for service of summons and complaint. (See, e.g., applications for writs of attachment under C.C.P. §482.070(d) and applications for writs of possession under C.C.P. §512.030(b)). Plaintiff did not serve the motion in the same manner that it served the summons and complaint.
Although the stipulated agreement in the present case purports to waive proper service of the motion, such advance waivers of due process are not enforceable under California law against presumably legally unsophisticated individuals. (Isbell v. County of Sonoma (1978) 21 Cal.3d 61).
In view of the above, the court continues the motion to July 28, 2026, at 9:00 a.m. in Department 3 to give plaintiff an opportunity to properly serve the motion at least 16 days before the hearing.
The court notes that plaintiff requested costs be included in the judgment. However, costs may be awarded only upon the filing of a memorandum of costs under CRC 3.1700 after judgment is entered.
A. ROE v. VALLEJO CITY UNIFIED SCHOOL DISTRICT and JAMES DOE
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