## Facts

- Elias S. Olvera, Sr. and Annie M. Olvera sued Paula D. Olvera and Richard M. Olvera over an alleged 1985 oral $17,000 loan.
- Plaintiffs alleged defendants promised either to secure repayment with a second deed of trust on a Riverside property or to refinance and repay “immediately.”
- Plaintiffs recorded a lis pendens against the property and mailed it to Paula at a Pismo Beach address “c/o Casa Calderon.”
- Plaintiffs obtained an order permitting service of summons by publication after asserting Paula could not be located.
- Paula did not appear, and the court entered a default judgment against her that included fraud relief and punitive damages.
- Paula later moved to set aside the default and default judgment under Code of Civil Procedure § 473.5, asserting service by publication did not give her actual notice in time to defend; she learned of the lawsuit through the lis pendens.
- The trial court granted the motion and vacated the default and default judgment; plaintiffs appealed.

## Issues

1. Whether “actual notice” under Code of Civil Procedure § 473.5 refers to notice resulting from service of summons, rather than informal awareness of litigation from another source.
2. Whether a defendant’s knowledge of litigation derived from a recorded lis pendens constitutes “actual notice” that bars relief under § 473.5 from a default entered after service by publication.

## Decision

- The Court of Appeal affirmed the order vacating the default and default judgment.
- The court held that jurisdiction obtained through service (including publication) does not bar § 473.5 relief if service of summons did not result in actual notice in time to defend.
- The court held that knowledge of the lawsuit from a source other than service of summons (such as a lis pendens) does not, by itself, constitute “actual notice” that precludes § 473.5 relief.
- The court agreed Paula lacked the information that service of summons is intended to convey (including the nature of claims, potential exposure such as punitive damages, and the time to respond).

## Legal Principles

- Code of Civil Procedure § 473.5 authorizes relief from default when service of summons has not resulted in actual notice to the defendant in time to defend.
- “Actual notice” for § 473.5 focuses on whether service of summons provided meaningful notice of the action and the need to respond, not merely whether the defendant learned generally that litigation existed.
- A lis pendens may alert a person to litigation affecting property, but it does not necessarily provide notice of the pleaded causes of action, damages sought, or response deadlines.
- Even where service by publication is sufficient to confer jurisdiction, a default may be set aside under § 473.5 if that service did not actually apprise the defendant in time to defend.

## Conclusion

The court upheld vacatur of a default judgment because Paula’s awareness of a recorded lis pendens did not substitute for actual notice resulting from service of summons, and § 473.5 permits relief when the method of service used did not provide timely, meaningful notice to defend.


Olvera v. Olvera, 232 Cal. App. 3d 32, 283 Cal. Rptr. 271 (Ct. App. 1991)