Judge: Ashfaq G. Chowdhury, Case: 23GDCV02528, Date: 2024-07-19 Tentative Ruling
Case Number: 23GDCV02528 Hearing Date: July 19, 2024 Dept: E
Hearing Date: 07/19/2024
Case No: 23GDCV02528
Trial Date: UNSET
Case Name: BANKERS HEALTHCARE GROUP, LLC v. NAIERI PENDAR
[TENTATIVE
RULING–SET ASIDE DEFAULT AND DEFAULT JUDGMENT]
RELIEF REQUESTED¿
“Defendants,
NAIERI PENDAR, by and through its attorney of record, Dublas Paniagua, Esq.,
hereby move for an Order to Set Aside the Default and Default Judgment pursuant
to CCP §473.5, and to Quash Service of Summons due to lack of jurisdiction
pursuant to California Code of Civil Procedure §473.5.. This motion is based on
this Notice of Motion and Motion, the attached Memorandum of Points and
Authorities, the papers and pleadings on file in this action, and such other
papers, pleadings, and arguments as this Court shall admit.”
(Def.
Mot. p. 1-2.)
[The
Court notes that it appears as if there is only one defendant, and not
defendant(s), as the notice indicates.]
PROCEDURAL
Moving Party: Defendant, Naieri Pendar
Responding Party: Plaintiff, Bankers Healthcare Group, LLC
16/21
Day Lapse (CCP § 12c and § 1005(b): Ok
Proof of Service Timely Filed (CRC, Rule 3.1300): Ok
Correct Address (CCP § 1013, § 1013a): Ok
Moving Papers:
Notice/Motion; Pendar Declaration; Fernandez Declaration;
Opposition Papers:
Opposition; Summer Dos Santos Declaration; Carole Alegre-Thiry Declaration; Jaime
Mariscal Declaration; Richard L. Weiner Declaration;
Reply Papers:
Reply
ANALYSIS
Plaintiff filed the instant action on 11/30/2023. On
2/14/2024, default was entered. On 04/17/2024, default judgment was entered.
Under CCP § 473.5:
When 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. The notice of motion shall be
served and filed 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.
(CCP § 473.5(a).)
Timeliness
“The notice of motion shall be served and filed 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.” (CCP § 473.5(a).)
Here, Defendant’s motion to set aside default and
default judgment was filed and electronically served on 5/21/2024.
The default judgment was entered on 4/17/2024, and
this motion was served and filed on 5/21/2024. Defendant’s declaration states,
“On or about April 3, 2024, I received via USPS mail a letter from the Law
Offices of Richard L. Weiner. When I opened the mail, I noticed that it was a request to enter a default against me
for a lawsuit that I was not aware of. This was the first time that I became
aware of this lawsuit.” (Pendar Decl. ¶ 3.)
Thus here, Defendant first became aware of the lawsuit
on 4/3/2024 based on receiving the request to enter default, which was before
the default judgment was entered on 4/17/2024. Therefore, Defendant’s motion
does not exceed 180 days after service on him or her of a written notice that
the default or default judgment has been entered. This motion is thus timely.
Lack of Actual Notice
As
stated in CCP § 473.5(b):
A notice of motion to set aside a default
or default judgment and for leave to defend the action shall designate as the
time for making the motion a date prescribed by subdivision (b) of Section
1005, and it shall be accompanied by an affidavit showing under oath that the
party’s lack of actual notice in time to defend the action was not caused by
his or her avoidance of service or inexcusable neglect. The party shall serve
and file with the notice a copy of the answer, motion, or other pleading
proposed to be filed in the action.
(CCP § 473.5(b).)
Here, Defendant’s
declaration shows that Defendant’s lack of actual notice was not caused by his
or her avoidance of service or inexcusable neglect.
As previously stated in
the Pendar Declaration in ¶ 3, Defendant first became aware of the lawsuit on
April 3, 2024 when opening mail that included the request to enter default. Pendar
explains that even though the proof of sub-service of the summons and complaint
indicates service on a Caucasian woman, 50-60 years of age, with blonde/grey
hair, Defendant does not know who this person is. (See Pendar Decl. ¶ 4.)
Defendant resides with their partner, Sheena Fernandez, who is 42 years of age
and has short brunette hair. (Pendar Decl. ¶ 4.) Pendar states that neither
Pendar nor Fernandez is 50-60 years of age with blond/grey hair. (Pendar Decl.
¶ 4.) While Pendar says that there is an attached Exhibit A with Pendar and
Fernandez’s driver’s licenses to show what the two look like, Pendar did not
attach an Exhibit A with driver’s licenses.
Defendant also attaches
the declaration of partner, Sheena Fernandez. Fernandez states that both her
and Pendar live alone and no one else resides with them. (Fernandez Decl. ¶ 3.)
Fernandez also reviewed the proof of service and states that she does not know
who the 50-60 year old Caucasian woman with blonde/grey hair is who allegedly
received the proof of service. (Fernandez Decl. ¶ 4.)
In Opposition, Plaintiff
argues that Defendant and Sheena Fernandez expressly admit to residing at the
address where Defendant was sub-served.
However, the Court finds
this argument unavailing. Even if those declarations admit that Defendant
resided where sub-service occurs, that does not prove actual notice. CCP §
473.5 deals with actual notice.
Further, Plaintiff argues
that sub-service was done in a code-compliant manner under CCP § 415.20.
Again, Plaintiff’s
argument is unavailing. The standard set forth in CCP § 473.5 deals with actual
notice, not whether the service was code-compliant.
“The phrase ‘actual
notice’ in section 473.5 ‘means genuine knowledge of the party litigant and
does not contemplate notice imputed to a principal from an attorney’s actual
notice.’” (Tunis v. Barrow (1986) 184 Cal.App.3d 1069, 1077 citing Rosenthal
v. Garner (1983) 142 Cal.App.3d 891, 895.)
Here, Defendant’s
declaration indicates that Defendant did not have genuine knowledge, or actual
notice, of service of a summons and complaint.
“Upon a finding by the
court that the motion was made within the period permitted by subdivision (a)
and that his or her lack of actual notice in time to defend the action was not
caused by his or her avoidance of service or inexcusable neglect, it may set
aside the default or default judgment on whatever terms as may be just and
allow the party to defend the action.” (CCP § 473.5(c).)
Here, the motion was
timely made. Further, the moving declaration of Pendar and Fernandez indicate
that Pendar did not have actual notice of the action and nothing in the
declarations indicate that the lack of actual notice was caused by Defendant’s
avoidance of service or inexcusable neglect. Although Defendant did not attach
the driver’s licenses like it alleged, Pendar’s declaration states that Pendar
and their partner are not 50-60 years of age with blonde/grey hair.
TENTATIVE RULING
Defendant’s
motion to set aside the default and default judgment is GRANTED. The Court
notes that Defendant’s notice also sought to quash service of summons but no
argument was brought to quash service of summons. This motion only asserted
arguments with respect to CCP § 473.5, and 473.5 does not mention anything
about quashing service of summons. CCP § 473.5 only mentions setting aside the
default or default judgment.
“The party shall serve
and file with the notice a copy of the answer, motion, or other pleading
proposed to be filed in the action.” (CCP § 473.5(b).)
Here, the motion itself
contained Defendant’s proposed Answer. However, there is no proof of service
indicating that the proposed answer was served.