Judge Cherol J. Nellon, Case Number: 21STCV12565, Date: 2025-01-22 Tentative Ruling

Judge: Cherol J. Nellon, Case: 21STCV12565, Date: 2025-01-22 Tentative Ruling

Case Number: 21STCV12565 Hearing Date: January 22, 2025 Dept: 14

Case Background

Plaintiff alleges that it did construction work for which it was not paid. Defendant alleges that Plaintiffs failed to do the work that was agreed upon.

Complaint

On March 1, 2022, Plaintiff filed its Second Amended Complaint (“SAC”) for (1) Breach of Contract; (2) Foreclosure of Mechanic’s Lien; (3) Goods and Services Rendered; (4) Quantum Meruit; (5) Fraud; and (6) Negligent Misrepresentation against Defendants Sang & Sang, LLC (“Sang”) and DOES 1-20.

On June 23, 2022, the court sustained Defendant Sang’s demurrer to the sixth cause of action, without leave to amend.

On July 5, 2022, Defendant Sang filed its Answer.

Cross-Complaints

On April 15, 2022, Defendant Sang filed its First Amended Cross-Complaint for Breach of Contract against Plaintiff and Cross-Defendants Brian Park, Charlie Park (collectively “Parks”), and ROES 1-20.

On May 17, 2022, Plaintiff and Cross-Defendant Parks filed their joint Answer.

On May 23, 2023, Cross-Complainant Sang voluntarily dismissed Cross-Defendant Charlie Park, without prejudice.

On May 30, 2023, Cross-Defendant Charlie Park filed his Memorandum of Costs.

On March 7, 2024, Cross-Complainant Sang voluntarily dismissed Cross-Defendant Brian Park, without prejudice.

On April 17, 2024, Park Construction & Management, Inc. (Park Construction) filed a Cross-Complaint against Cross-Defendant Platinum Plus Flooring, LLC (Platinum)

On June 13, 2024, Default was entered against Cross-Defendant Platinum Plus Flooring, LLC.

On December 10, 2024, Platinum filed a motion to set aside default.

On January 8, 2025, Park Construction filed an opposition.

On January 14, 2025, Platinum filed a reply.

Trial Date

Jury Trial is currently set for April 28, 2025

Instant Pleading

Platinum moves to set aside default.

Decision

Platinum’s motion to set aside default is GRANTED. Platinum must file a responsive pleading within 30 days of this order.

Discussion

Platinum moves to set aside default on the grounds that it never received notice of this action. Although Park Construction argues that Platinum failed to file its proposed Answer, Platinum’s counsel attests this was an inadvertent error and filed the proposed Answer on reply. The Court notes that although Platinum moves to set aside default under Code Civ. Proc., section 473, Platinum does not allege that its failure to answer was due to mistake, inadvertence, surprise, or neglect. Rather, Platinum alleges it did not receive notice of the action, which is governed by Code Civ. Proc., section 473.5.

Code of Civil Procedure section 473.5, subdivision (a) provides, “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.” (Code Civ. Proc., § 473.5, subd. (a).)

“[I]t is the policy of the law to bring about a trial on the merits whenever possible, so that any doubts which may exist should be resolved in favor of the application, to the end of securing to a litigant his day in court and a trial upon the merits.” (Frank E. Beckett Co. v. Bobbitt (1960) 180 Cal.App.2d Supp. 921, 928.)

Here, Platinum’s CEO, Terry Sua, testifies that he learned of the underlying action when he was deposed in that action. (Sua Decl., ¶2.) After he was subpoenaed as a witness for trial, he learned about default entered against Platinum. (Id., ¶3.) Sua and Platinum never received the Cross-Complaint in Platinum’s mailbox. (Id., ¶4.) After he learned of the default, Sua retained an attorney to file this motion to set aside default. (Id., ¶5.)

In opposition, Park Construction argues that substituted service was proper and that Platinum has not established that its failure to answer was due to mistake, inadvertence, surprise, or neglect. However, Platinum alleges service did not result in actual notice of this action, which is governed by Code Civ. Proc., section 473.5. The section does not require a finding of mistake, inadvertence, surprise, or neglect.

Park Construction also argues this motion was not filed in a reasonable time because Sua does not disclose on what date he discovered the default and the case is now over three years old. (Opp., p.12.) Given that the Cross-Complaint was only filed in April 2024 and default was only entered in June 2024, Platinum’s motion, filed in December 2024 is not unreasonably late. Although neither party provides the date Park Construction served Platinum with notice of the entry of default, Platinum filed this motion less than 180 days after default was entered. Therefore, Platinum filed the motion within the time allowed by Code Civ. Proc., section 473.5. The Court finds Platinum’s motion was filed in a reasonable time.

Finally, Park Construction argues that Platinum fails to establish a meritorious defense. However, this is not a requirement for relief under Code Civ. Proc., section 473.5 where the moving party does not receive actual notice of the action.

In light of the policy of law which favors resolution on the merits, the Court is satisfied that default should be set aside because Platinum did not receive actual notice of the Cross-Complaint against it. Therefore, the motion to set aside default is GRANTED.

Conclusion

Platinum’s motion to set aside default is GRANTED. Platinum must file a responsive pleading within 30 days of this order.