Judge: Audra Mori, Case: 19STCV17209, Date: 2023-01-06 Tentative Ruling

Case Number: 19STCV17209    Hearing Date: January 6, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Maria Guadalupe Torres (“Plaintiff”) filed this action against defendants Igor Kukharchuk (“Kukharchuk”), Ina Kuhr (“Kuhr”), Suzie Cho Ahn (“Ahn”), and Does 1 to 50 for injuries relating to a dog bite incident.  Plaintiff has dismissed Ahn and Does 1 to 50 from the action. 

On June 9, 2020, Plaintiff obtained Kukharchuk’s and Kuhr’s (collectively, “Defendants”) defaults.  On July 15, 2022, Plaintiff filed the instant Motion to Set Aside Plaintiff’s Request for Default Judgment.  Plaintiff filed proof of service of the motion on Defendants.  The motion is unopposed. 

Although titled a motion to set aside Plaintiff’s request for default judgment, Plaintiff is clearly seeking to set aside the default entered against Defendants.  Plaintiff provides that Plaintiff failed to give proper notice of her statement of damages to Defendants.  Plaintiff served Defendants with her statement of damages by U.S. mail on June 9, 2020, not by personal service.  Plaintiff asserts she is thus unable to move forward with a default judgment against Defendants because of Plaintiff’s counsel mistake, inadvertence and neglect. 

Plaintiff seeks an order to set aside the default to allow Plaintiff to properly serve her statement of damages on Defendants, and to then allow Defendants 30 days to answer the complaint.

2. Motion to Set Aside Default

CCP § 473(d) states, “The 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.”

“In personal injury actions filed in superior court, the amount of the demand is provided to the defendant in a statement of damages rather than in the complaint. (§§ 425.10, subd. (b), 425.11.) Where a superior court defendant has not been advised of the amount of the demand through the statement of damages, it has been uniformly held that the entry of a default is void.”  (Pino v. Campo (1993) 15 Cal.App.4th Supp. 1, 4.)  A default judgment or entry of default is void if the statement of damages is not served in the manner prescribed by statute.  (Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 857-58; see also Plotitsa v. Super Court (1983) 140 Cal.App.3d 755, 761-62 [service of statement of damages by mail rendered default void on the face of the record], and Twine v. Compton Supermarket (1986) 179 Cal.App.3d 514, 517 [where statement of damages was served by mail, “the default judgment exceeded the court's jurisdiction” and was void on the face of the record].)  Furthermore, a defendant is entitled actual notice of the statement of damages for “reasonable period of time” before the defendant’s default may be entered.  (Behm v. Clear View Technologies (2015) 241 Cal.App.4th 1, 10, citing Schwab v. Rondel Homes, Inc. (1991) 53 Cal.3d 428, 435.) 

Here, Plaintiff, through Plaintiff’s counsel, served Defendants with Plaintiff’s statement of damages by U.S. mail on June 9, 2020, which was the same day Plaintiff had Defendants’ defaults entered.  This provided inadequate notice to Defendants.  (Behm, 241 Cal.App.4th at 10.)  Moreover, the statement of damages was required to be served in the same manner as the summons, and Plaintiff’s failure to do so renders the entry of each of Defendants’ defaults void.  (Sakaguchi, 173 Cal.App.4th at 857-58; see also Plotitsa, 140 Cal.App.3d at 761-62.) 

            The motion is therefore granted.  The defaults entered against Defendants Kukharchuk and Kuhr on June 9, 2020 are set aside as void.  Plaintiff is ordered to serve Defendants with the summons, complaint, statement of damages, related documents, and a copy of this order in the same manner as the summons within 20 days.  Defendants thereafter will have 30 days to file their responsive pleadings.  Given the age of the case, Plaintiff must move expeditiously in prosecuting this action against Defendants.   

Plaintiff is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 6^th day of January 2023