Judge Cynthia A Freeland, Case 37-2022-00032711-CU-CL-NC 2024-03-22 Tentative Ruling

Judge: Cynthia A Freeland, Case: 37-2022-00032711-CU-CL-NC, Date: 2024-03-22 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

SOUTH BUILDING TENTATIVE RULINGS - March 21, 2024

03/22/2024 01:30:00 PM N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited Other Collections Motion Hearing (Civil) 37-2022-00032711-CU-CL-NC CALIFORNIA BUSINESS BUREAU INC VS DURAN [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Set Aside Judgment, 12/26/2023

Defendants David Duran and Jessica Duran (collectively, 'Defendants')'s motion to set aside default and default judgment is granted.

On August 11, 2022, Plaintiff California Business Bureau, Inc. ('Plaintiff') commenced this action by filing a Complaint against Defendants for: (1) open book account; (2) account stated; and (3) quantum meruit. See ROA No. 1. According to the Non-Service Report filed on June 14, 2023, Plaintiff attempted to serve Defendants between August 20 and 26, 2022 at 233 Oleander Dr., Oceanside, CA 92057 (the 'Property'). See ROA No. 27. Each time, the process server indicated 'Gated Courtyard No Access to the Front Door.' Ibid. It ultimately was determined that service could not be effectuated at the Property.

On March 24, 2023, Plaintiff filed separate applications for an order for publication of the summons for Mr. and Mrs. Duran, respectively. See ROA Nos. 8, 12. Each application was accompanied by a declaration of diligence to serve the summons. See ROA Nos. 10, 14. On March 27, 2023, the court entered orders for publication of the summons, directing Plaintiff to serve the summons upon Defendants in The Daily Transcript at least once a week for four successive weeks in the manner prescribed in California Government Code § 6064. See ROA Nos. 11, 15. On April 25, 2023, Plaintiff filed a proof of publication representing that service by publication was attempted on April 4, 11, 18, and 25, 2023 in The Daily Transcript. See ROA No. 17. On June 14, 2023, Plaintiff requested, and the court entered, Defendants' defaults (the 'Defaults'). See ROA No. 26. On June 26, 2023, the court entered a $95,856.97 default judgment against Defendants (the 'Default Judgment'). See ROA No. 32. On December 26, 2023, Defendants filed the pending motion to set aside or vacate the Defaults and Default Judgment under California Code of Civil Procedure ('CCP') § 473.5(a). See ROA No. 37.

CCP § 473.5(a) provides that: 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.

Cal. Code Civ. P. § 473.5(a). CCP § 473.5 applies in instances where there has been proper service of summons yet the defendant did not find out about the action in time to defend. See Trackman v. Kenney (2010) 187 Cal. App. 4th 175, 180. A motion to set aside a default under CCP § 473.5(a) must 'be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend Calendar No.: Event ID: TENTATIVE RULINGS

3064748 CASE NUMBER: CASE TITLE: CALIFORNIA BUSINESS BUREAU INC VS DURAN [IMAGED] 37-2022-00032711-CU-CL-NC the action was not caused by his or her avoidance of service or inexcusable neglect.' Cal. Code Civ. P. § 473.5(b). ' '[A]ctual notice' in section 473.5 'means genuine knowledge of the party litigant . . . .' [Citation.]' Ellard v. Conway (2001) 94 Cal. App. 4th 540, 547 (quoting Tunis v. Barrow (1986) 184 Cal. App. 3d 1069, 1077. ' '[A]ctual knowledge' has been strictly construed, with the aim of implementing the policy of liberally granting relief so that cases may be resolved on their merits. [Citation.]' Ellard, 94 Cal. App. 4th at 547 (quoting Olvera v. Olvera (1991) 232 Cal. App. 3d 32, 39-40). The party seeking to set aside a default bears the burden of demonstrating that his or her lack of actual notice was not caused by his or her avoidance of service or inexcusable neglect. See Rios v. Singh (2021) 65 Cal. App. 5th 871, 885.

The court construes Plaintiff's lack of opposition as a concession of the motion's merits. See San Diego Rules of Court, Rule 2.1.19.B. In addition, the court finds that Defendants have provided sufficient evidence establishing that service by publication did not provide them with actual notice in time to defend this action. As set forth above, the Default Judgment in this matter was entered on June 26, 2023. Defendants represent that they first became aware of this action and the Default Judgment in September 2023 upon receiving notice from the San Diego County Recorder's Office that an abstract of judgment had been recorded against the Property. See Duran Decl., ¶ 1. Defendants' lack of actual notice was not caused by their avoidance of service or inexcusable neglect. Indeed, for several days between August 20 and 26, 2022, Defendants were out of town celebrating their anniversary and thus were not present at the Property during Plaintiff's service attempts. Ibid., ¶¶ 2, 5. Moreover, and importantly, Plaintiff did not satisfy all requirements set forth in the court's March 27, 2023 orders for publication of the summons. More specifically, the orders for publication required as follows: IT IS FURTHER ORDERED that a copy of said summons/citation, of said complaint/petition, and of the order for publication in this case be forthwith deposited with the United States Postal Service, postage-prepaid, directed to said defendant/respondent/citee if the address is ascertained before expiration of the time prescribed for the publication of this summons/citation and, a declaration of this mailing or of the fact that the address was not ascertained to be filed at the expiration of the time prescribed for publication.

See ROA Nos. 11, 15.

In this case, the Register of Actions does not contain a proof of service reflecting that Plaintiff: (1) served Defendants with a copy of the summons, Complaint, and orders for publication via prepaid U.S. Mail, or (2) a declaration of such mailing or of the fact that the address was not ascertained. Consequently, the court must conclude that Defendants did not have actual notice in time to defend this lawsuit.

In light of the foregoing, the court grants the motion and vacates entry of the Defaults (see ROA No. 26) and Default Judgment (see ROA No. 32). Defendants are directed to file and serve their proposed Joint Answer in accordance with the pertinent sections of the California Code of Civil Procedure, the California Rules of Court, and the Local Rules.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, March 22, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of March 22, 2024. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

Calendar No.: Event ID: TENTATIVE RULINGS

3064748