Judge: Blaine K. Bowman, Case: 37-2022-00023211-CU-FR-NC, Date: 2023-10-20 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - October 19, 2023

10/20/2023  01:30:00 PM  N-31 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Blaine K. Bowman

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Civil - Unlimited  Fraud Motion to Dismiss 37-2022-00023211-CU-FR-NC MCCALLUM VS STELVIO TRANSPORT LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 07/07/2023

The Motion to Set Aside Entry of Default brought by defendant Stelvio Transport LLC (Stelvio) is GRANTED.

For administrative purposes, Stelvio shall e-file its proposed Answer as a standalone document to be entered in the Court's Register of Actions. Failure to do so within 10 days of this ruling may result in the Court summarily reinstating the default.

The Request for Judicial Notice brought by Stelvio is GRANTED pursuant to Evidence Code § 451, et seq. Additionally, on the Court's own motion, the Court takes judicial notice of the entire publicly-available record and files in the case of McCallum v. Stelvio Transport LLC (21-42190) filed in the San Diego Superior Court.

Stelvio moves for relief under Code of Civil Procedure § 473(b) on grounds of mistake, inadvertence, surprise, or excusable neglect. However, it appears that Stelvio was previously sued by plaintiff Carey McCallum (Plaintiff), and it further appears that Stelvio's learned counsel was made aware of the instant lawsuit. Indeed, the moving papers recite: 'the instant lawsuit[] was never served on Defendant. Plaintiff only sent one page of text from what appears to be a multi-page complaint.' (Motion, p. 1:11-12.) Indeed, Stelvio's Director of Human Resources admits in her declaration that '[i]n or around August 2022, I received a portion of what appeared to be another lawsuit from Plaintiff. There was no cover or caption page seeking damages and no signature page.' (ROA 35, ¶ 4.) While this makes it sound like Stelvio could not determine the case number or lookup the case, Stelvio had counsel present at the Case Management Conference that took place in this case on November 18, 2022, indicating that Stelvio and its agents became aware of this lawsuit, with the necessarily identifying information like the case number, within the three month time frame between August and November of 2022. (ROA 16.) Though Stelvio's HR Director declares that '[i]t is not my or Stelvio Transport's practice to ignore legal documents,' it appears that despite making an appearance in this lawsuit at the Case Management Conference on November 18, 2022, Stelvio declined to file a responsive pleading and, instead, default was entered against Stelvio on May 22, 2023. It appears that this event is what triggered Stelvio to file the instant Motion to Set Aside Entry of Default despite the fact that Stelvio did have knowledge that the lawsuit was on file for approximately six months before default was entered. The Court does not find this to have been mistaken, surprising, inadvertent, or due to excusable neglect, and thus does not grant the motion on grounds of Code of Civil Procedure § 473(b).

Stelvio also appears to be seeking relief on grounds that 'Plaintiff failed to effectuate service of the Complaint on Defendant.' (ROA 33, p. 1:7-8.) Interestingly, throughout its motion, Stelvio never Calendar No.: Event ID:  TENTATIVE RULINGS

2993063 CASE NUMBER: CASE TITLE:  MCCALLUM VS STELVIO TRANSPORT LLC [IMAGED]  37-2022-00023211-CU-FR-NC references the statute that corresponds with relief due to improper service of summons – which is Code of Civil Procedure § 473(d). (See Weil and Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group, 2023) ¶ 5:420 ('If the summons was not properly served, relief from default or default judgment should be sought under CCP § 473(d) (relief from void judgment; [internal citation]').) On the other hand, to the extent that the service of summons in this case was improper and did not comply with the requirements of California law, the default upon this service of summons can only result in a void judgment – and void judgment can be set aside at any time. (Weil and Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group, 2023) ¶ 5:277, citing Peralta v. Heights Med. Ctr., Inc.

(1988) 485 U.S. 80, 84-85, also citing Calvert v. Al Binali (2018) 29 Cal.App.5th 949, 960-961 (if there has not been valid service of summons, 'the judgment violates due process of law; it is void and can be set aside at any time...') (emphasis in original).) For this reason, the Court grants the motion on grounds that is has been raised by referencing 'fail[ure] to effectuate service of the Complaint on Defendant' in the Notice of Motion, and, even if that language was not sufficient to raise the proper statutory grounds (Code of Civil Procedure § 473(d)) the issue can be addressed sua sponte because any judgment resulting therefrom would be void as a violation of due process.

Lastly, without considering the precise differences between the complaint in the instant case and the complaint that was brought in the prior case of McCallum v. Stelvio Transport LLC (21-42190), the Court notes for the edification of the parties that refiling the exact same claims that have already been adjudicated in a prior proceeding is not only subject to the doctrine of res judicata, but also may be a sanctionable violation under Code of Civil Procedure § 128.7(b), since by signing a pleading a party is representing that the claims 'are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.' Under the right circumstances, re-filing claims that were already adjudicated to formal judgment in another department may be considered frivolous, in bad faith, or harassing. (See Code of Civil Procedure §§ 128.5 and 128.7.) Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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