Judge: Christopher K. Lui, Case: 22STCV18302, Date: 2023-02-28 Tentative Ruling

Case Number: 22STCV18302    Hearing Date: February 28, 2023    Dept: 76

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein.  As required by Rule 3.1308(a)(2), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue.  Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776.  If notice of intention to appear is not given and the parties do not appear, the Court will adopt the tentative ruling as the final ruling.


Plaintiff purchased a Subway restaurant franchise from Defendants. Defendants failed to turn over proceeds from credit card issuers for payments customers made with credit cards before the sale closed.

Defendants Fred Wu and Dana Wu move to set aside the entry of their defaults and default judgment.

TENTATIVE RULING

Defendants Fred Wu and Dana Wu’s motion to set aside the entry of their defaults and default judgment is DENIED.

ANALYSIS 

Motion To Vacate Entry Default

Request For Judicial Notice

            Defendants’ request that the Court take judicial notice of the proofs of service filed on June 17, 2022, and the December 14, 2022 Minute Order in this action is GRANTED per Evid. Code, § 452(d)(court records).

Plaintiff’s Evidentiary Objections

            Declaration of Fred Wu

No. 1: OVERRULED. Relevant; sufficient foundation.

No. 2: OVERRULED. Personal knowledge; relevant; not hearsay; goes to weight.

No. 3: SUSTAINED. Lack of personal knowledge.

No. 4: OVERRULED. Relevant; goes to weight.

No. 5: OVERRULED. Relevant; goes to weight.

No. 6: OVERRULED. Personal knowledge; relevant; not hearsay; goes to weight.

No. 7: SUSTAINED. Lack of personal knowledge.

No. 8: OVERRULED. Relevant.

No. 9: OVERRULED. Relevant.

            Declaration of Dana Wu

No. 1: OVERRULED. Personal knowledge; relevant; not hearsay; goes to weight.

No. 2: SUSTAINED. Lack of personal knowledge.

No. 3: OVERRULED. Relevant; goes to weight.

No. 4: OVERRULED. Relevant; goes to weight.

No. 5: OVERRULED. Relevant; goes to weight; not hearsay.

No. 6: SUSTAINED. Lack of personal knowledge.

No. 7: OVERRULED. Relevant.

Discussion

Defendants Fred Wu and Dana Wu move to set aside the entry of their defaults and default judgment. 

Defendants’ default was entered on July 28, 2022. On December 5, 2022, Default judgment entered against Defendants Fred Wu and Dana Wu.

            CCP § 473(b) provides for discretionary relief from entry of default, in pertinent part as follows:

(b) The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.


(Civ. Proc. Code § 473(b).)

 

            Defendants argue as follows at Pages 4:4 – 5:8:

In or around November of 2021, around the Thanksgiving holiday, a supply line ruptured in Defendants’ home, which severely damaged several bathrooms and walls. (F. Wu Decl., ¶ 2; D. Wu Decl., ¶ 2.) The resulting damage[ ] rendered Defendants’ home uninhabitable and Defendants were forced to stay elsewhere. (Id.) Between November of 2021 and early February of 2022, Defendants were alternating living with Dana’s niece and staying in hotels while they worked with their insurance to address the damage in their home. (Id. at ¶ 3; Id. at ¶ 3.) Thereafter, the claim was approved, and Defendants were able to begin construction. (Id.)

 

In mid-February of 2022, construction started on Defendants’ home. (F. Wu Decl., ¶ 4; D. Wu Decl., ¶ 4.) Between mid-February 2022 and late July or early August of 2022, contractors and other workers were present at Defendants’ home every day of the week except for Sundays. (Id.) On the dates Plaintiff attempted service (i.e., June 8, 2022, June 10, 22, June 12, 2022, and June 13, 2022) Defendants had Covid-19 and were living with their niece. (Id. at ¶ 6; Id. at ¶ 6.) Defendants also received final payment from their insurance for the damages. (Id. at ¶ 10; Id. at x 9.) Notably, all the workers at Defendants’ home were of Asian ethnicity and did not speak English. (Id.) Defendants are also of Asian ethnicity. (Id.) Defendants did not live in their home during construction. (Id. at ¶ 5; Id. at ¶ 5.)

 

Fred was not personally served with the summons and complaint on Wednesday, July 13, 2022, at 10:27 a.m. as alleged in the proof of service because he was not at his home. (F. Wu Decl., ¶ 6.) Additionally, Fred does not match the description of the person as set forth in the proof of service. (Id. at ¶ 7; RJN Ex. 1.) Fred weighs 205 pounds, not 185 pounds as described in the proof of service (F. Wu Decl., at ¶ 7.) For these reasons, Fred could not have accepted service of the summons and complaint addressed to his wife, Dana. (Id. at ¶ 6.) Defendants believe one of the workers present at their home accepted the documents without knowing what the documents were or what the process server was saying because they did not speak English. (F. Wu Decl., ¶ 7; D. Wu Decl., ¶ 7.)

 

 In or around late July or early August of 2022, Defendants moved back into their home. (F. Wu Decl., ¶ 8; D. Wu Decl., ¶ 6.) Defendants did not become aware of the present action until late October of 2022 when Defendant Fred was sorting through old mail. (Id. at ¶ 9; Id. at ¶ 8.) Between November 2021 and October of 2022, Defendants did not check the mail because of their bills were on autopay. (Id.)

 

On or about November 7, 2022, counsel for Defendants met and conferred with counsel for Plaintiff on a stipulation to set aside the entry of default. (D. White Decl., ¶ 5.) Counsel for Defendants informed counsel for Plaintiff of the facts supporting Defendants’ position that service of the Summons and Complaint was not effectuated. (Id.) Counsel for Plaintiff refused to stipulate. (Id.) With this Motion, Defendants submit the proposed Answer to the Complaint. (Id. at ¶ 11, Ex. 1.) 

 

           The Court does not find Defendants’ Declarations to be credible. In ruling on a CCP § 473(b) motion to set aside default/default judgment, the court must weigh the relative credibility of the parties and come to a conclusion. (Moghaddam v. Bone (2006) 142 Cal.App.4th 283, 290-92.)

The proofs of service reflect that personal service was effectuated upon Defendant Fred Wu on June 13 2022, and substituted service was effectuated upon Defendant Dana Wu by leaving a copy with Fred Wu and thereafter mailing a copy on June 15, 2022. (See Proofs of Service filed on June 17, 2022.)

           Yet, in his Declaration, Defendant Fred Wu states that he was not personally served with the summons and complaint on Wednesday, July 13 2022, at 10”27 a.m. as alleged in the proof of service because I was not at my home.” (Fred Wu Decl., ¶ 6 (bold emphasis added). As noted, the proof of service reflects that Fred Wu was personally  served on June 13, not July 13, 2022. Thus, the fact that Fred Wu was not at his home on July 13, 2022 is irrelevant to whether he was served on June 13, 2022. Also, the difference between the description of the man served as being 185 pounds in 2022, whereas Defendant Fred Wu claims he weighs 205 pounds, is insufficient to cast doubt on the process server’s declaration. The process server necessarily estimates a person’s weight based on a quick visual assessment; he was not asking the person served to step on a scale. Moreover, the 20 pound difference is not so drastic as to call into question whether the person served was the same person as Defendant. Indeed, he could have gained some weight in the intervening time.

           Moreover, the fact that Defendants did not live in their home during construction does not mean Fred Wu was not present at the home on June 13, 2022, as homeowners  may visit the site of construction to monitor progress. (Fred Wu Decl., ¶ 5; Dana Wu Decl., ¶ 5.) Neither Defendant states that they never visited their home during construction.

           Further, as Plaintiff argues in the Opposition, Defendants do not provide sufficient evidence to support their claim that their house was under construction for the claimed time period. The photographs attached to the Declaration of Fred Wu only support a conclusion that the home suffered damage, but there are no photographs of construction in progress, or invoices reflecting such, to corroborate the period of construction. The check from the insurance company does not prove Defendant Wu was not at the property on the date he was purportedly served.

           As such, the Court does not find that service upon Defendants were ineffective. In any event, Defendants did not bring a motion to quash service of summons, which is the proper means to challenge the effectiveness of service.

           The Court then addresses whether Defendants’ failure to respond to the Complaint prior to the entry of their default was due to their mistake, inadvertence, surprise, or excusable neglect. (Civ. Proc. Code,§ 473(b).) In this regard, Defendants indicate that they did not become aware of the present action until late October of 2022, when they were sorting through old mail, and they did not check old mail between November 2021 and October of 2022 because all of their bills were on autopay. (Fred Wu Decl., ¶ 9; Dana Wu Decl., ¶ 8.)

           It is not reasonable for persons who are not living at their home—if their mail is not being forwarded to an alternate address—to not check their mail for 11 months. As such, Defendants’ failure to check their mail was inexcusable, and does not justify discretionary relief pursuant to CCP § 473(b).

 

The concept of “excusable,” furthermore, is not synonymous with a get-out-of-jail-free card for parties who later come to regret past inaction or sitting on their rights. “‘The inadvertence contemplated by the statute does not mean mere inadvertence in the abstract. If it is wholly inexcusable it does not justify relief. [Citations.] . . . [*415]  . . . Courts neither act as guardians for incompetent parties nor for those who are grossly careless of their own affairs. … The only occasion for the application of section 473 is where a party is unexpectedly placed in a situation to his injury without fault or negligence of his own and against which ordinary prudence could not have guarded.’” (Hearn, supra, 177 Cal.App.4th at p. 1206.)

 

(McClain v. Kissler (2019) 39 Cal.App.5th 399, 414-15 [bold emphasis added].)

 

            As such, the motion to set aside default is DENIED.