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.