Judge: Anne Hwang, Case: 23STCV22211, Date: 2024-08-23 Tentative Ruling

Case Number: 23STCV22211    Hearing Date: August 23, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

On September 14, 2023, Plaintiff Christopher Jordan Lujan (“Plaintiff), in pro per, filed a complaint against Monica Escobar and Does 1 to 5 negligence, fraud, and intentional tort. Plaintiff alleges that on September 2, 2023, Monica Escobar broke into his storage unit at his residence and threw his personal belongings in the rain. Plaintiff’s property was damaged as a result. Plaintiff also alleges this constituted an illegal lock-out.

On October 11, 2023, Plaintiff filed a proof of personal service of the complaint and summons on Monica Escobar (“Defendant”), on September 14, 2023.

On November 27, 2023, default was entered against Defendant.

On December 27, 2023, Defendant filed an answer. However, it was later stricken after Plaintiff moved to strike, since it was filed after default was entered. (See Min. Order, 3/15/24.)

On July 12, 2024, Defendant, in pro per, filed the instant motion to set aside the default pursuant to Code of Civil Procedure sections 473.5, 473(d), and based on equitable relief. No opposition has been filed.

LEGAL STANDARD

“Generally, a party who has not actually been served with summons has three avenues of relief from a default judgment.” (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180.) First, they may move under Code of Civil Procedure sections 473.5 (applied where service was proper but did not result in actual notice) or section 473(d) (judgment is valid on its face but void due to improper service). (Id.) Second, the party may seek equitable relief showing “that extrinsic fraud or mistake exists, such as a falsified proof of service, and such a motion may be made at any time, provided the party acts with diligence upon learning of the relevant facts.” (Id. at 181.) These first two methods “generally hinge on evidence about the method of purported service.” (Id.) Lastly, the party may move under section 473(d) that the default judgment is facially void. (Id.)

 Section 473.5 

Turning to the first method, under Code of Civil Procedure section 473.5, “[w]hen service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action.” ¿This motion must be brought “within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.” (Code Civ. Proc. § 473.5(a).)¿¿ 

¿¿¿¿ 

The focus of section 473.5 is whether the defaulting party obtained actual notice in time to defend the action.¿“Discretionary relief based upon a lack of actual notice under section 473.5 empowers a court to grant relief from a default judgment where a valid service of summons has not resulted in actual notice to a party in time to defend the action.”¿ (Anastos v. Lee (2004) 118 Cal.App.4th 1314, 1319.)¿“A party seeking relief under section 473.5 must provide an affidavit showing under oath that his or her lack of actual notice in time to defend was not caused by inexcusable neglect or avoidance of service.”¿(Ibid.; Code Civ. Proc. § 473.5(b).)¿The term “actual notice” means “genuine knowledge of the party litigant.”¿(Rosenthal v. Garner (1983) 142 Cal.App.3d 891, 895.)¿¿“The party seeking relief must serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action. (Code Civ. Proc. § 473.5(b).)  

Section 473(d)

Code of Civil Procedure section 473(d) states “[t]he court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” 

A motion to vacate a default and set aside a judgment under section 473(d) is the proper procedure to attack a default supported by evidence of service of process, but which is challenged for lack of personal jurisdiction. (Strathvale Holdings v. E.B.H.¿(2005) 126 Cal.App.4th 1241, 1249.) “[U]nder section 473, subdivision (d), the court may ‘set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service.’ [Citation.]” (Kremerman v. White (2021) 71 Cal.App.5th 358, 371.)

“Where a party moves under section 473, subdivision (d) to set aside ‘a judgment that, though valid on its face, is void for lack of proper service, the courts have adopted by analogy the statutory period for relief from a default judgment’ provided by section 473.5, that is, the two-year outer limit.” (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180.)

“ ‘When a defendant challenges the court's personal jurisdiction, the plaintiff has the initial burden of “demonstrating facts justifying the exercise of jurisdiction.’ [citation.] When there is conflicting evidence, the trial court's factual determinations are not disturbed on appeal if supported by substantial evidence. [citation.]’” (Strathvale Holdings, supra, 126 Cal.App.4th at 1250.) “[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.]”¿(Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) “[T]he filing of a proof of service creates a rebuttable presumption that the service was proper” but only if it “complies with the statutory requirements regarding such proofs.”¿(Id. at 1441-42.)

Even when the showing under section 473 is not strong, when there is doubt about setting aside a default, such doubt should be resolved in favor of relief. (Rosenthal v. Garner (1983) 142 Cal.App.3d 891, 898.)

Equitable Relief

“After six months from default, a trial court may still vacate a default on equitable ground even if statutory relief is unavailable.”¿ (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.)¿ A party may obtain equitable relief from an entry of dismissal based on an extrinsic mistake when the moving party: (1) has a meritorious case, (2) articulates a satisfactory excuse for not presenting a defense to the original action, and (3) demonstrates diligence in seeking to set aside the dismissal once discovered.¿ (Id. at p. 982.)¿¿¿ 

¿¿ 

An extrinsic mistake is broadly defined “. . . to encompass almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing. It does not seem to matter if the particular circumstances qualify as fraudulent or mistaken in the strict sense.”¿(In re Marriage of Park (1980) 27 Cal.3d 337, 342.) An ‘extrinsic’ mistake means a mistake that deprived a party of the opportunity to present a claim or defense while an ‘intrinsic’ mistake is one that goes to the merits of a proceeding.¿ (In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1064-1065.)¿¿¿ 

¿¿ 

A default cannot be set aside when the complaining party’s negligence contributed to the rise to the fraud or mistake.¿(See Kulchar v. Kulchar (1969) 1 Cal.3d 467, 473-474 [complaining party’s failure to investigate and assemble evidence at trial as grounds for denying equitable relief sought].)¿An extrinsic mistake may result from a disability when the disability renders the party incompetent or incapacitated such that it deprives the party from asserting a claim or defense. (See id. at pp. 471-472.)¿¿“For attorney misconduct to support equitable relief from a default judgment due to extrinsic mistake, there must have been ‘neglect of an extreme degree amounting to positive misconduct’ by counsel, rather than mere inexcusable neglect, sufficient to obliterate the attorney-client relationship and thereby preclude any imputation of counsel's neglect to the client. [Citations.] ‘Positive misconduct is found where there is a total failure on the part of counsel to represent his client.’ [Citation.]” (People v. One Parcel of Land (1991) 235 Cal.App.3d 579, 584.)  

DISCUSSION

            As an initial matter, Defendant has filed a proof of service showing that Plaintiff was personally served the moving papers for this motion on August 2, 2024. However, the Court notes that the papers contain the incorrect courthouse address and were not served enough time in advance.

Code of Civil Procedure section 1005 requires “written notice” of a motion including the date, time and location of the hearing on a motion. A moving party’s failure to serve the notice of motion and moving papers on a non-moving party violates the basic principles of procedural due process under the federal and state constitutions – notice and an opportunity to be heard.¿ (Logan v. Zimmerman Brush Co. (1982) 455 U.S. 422, 428 [minimum due process requires notice and opportunity for hearing appropriate to the nature of the case]; Horn v. County of Ventura (1979) 24 Cal.3d 605, 612 [due process principles require reasonable notice and opportunity to be heard].) Under Code of Civil Procedure section 1005(b), moving papers must be served and filed at least 16 court days before the hearing, and increased by five calendar days if mailed.

            Here, since the motion was served personally, it needed to served 16 court days before the hearing: August 1, 2024. Because Plaintiff was served on August 2, 2024, it was untimely. Therefore, because service of this motion was untimely and the moving papers do not contain the correct court address, the motion to set aside is denied as procedurally defective.

Turning to the merits of the motion, here, the proof of service of the summons and complaint on Defendant shows she was served personally on September 14, 2023 at 3:30 p.m. at 3961 Hammel Street, Los Angeles. (Proof of Service, filed 10/11/23.) Therefore, the face of the proof of service does not indicate service was improper.

Defendant’s declaration in support of this motion states she was never personally served on September 14, 2023, and that she was at another location at that date and time. While she does not describe where she was at the time, she then states: “Please see Exhibit A.” (Escobar Decl. ¶ 2.) Defendant does not describe what exhibit A is, and thus fails to authenticate it. Nevertheless, exhibit A appears to be a timesheet for Defendant, showing two shifts on September 14, 2023 from 4:55 a.m. to 9:30 a.m., and 10:00 a.m. to 2:35 p.m. Even if exhibit A is authenticated, it fails to show that Defendant was not served personally since the proof of service states it occurred at 3:30 p.m.—after Defendant was ostensibly off-work.

Therefore, given the proof of service, Defendant fails to show that she did not receive actual notice of the complaint and summons under section 473(d).

As for relief under section 473.5, this motion was not timely filed. As stated above, a motion under section 473.5 must be served and filed no later than two years after entry of default or 180 days after service of written notice that the default was entered. (Code Civ. Proc. § 473.5(a).) Here, Plaintiff personally served written notice that the default was entered against Defendant on December 6, 2023. (See Proof of Service, filed 1/2/24.) Therefore, a motion for relief under section 473.5 needed to filed by June 3, 2024.  

As for equitable relief, Defendant provides no facts in her declaration showing she has a meritorious defense and that she acted diligently in seeking to set aside this default.

CONCLUSION AND ORDER

Therefore, Defendant’s Motion to Set Aside the Default is DENIED without prejudice.

Defendant to provide notice and file a proof of service of such.