Judge Cynthia A Freeland, Case Number: 37-2023-00030034-CU-CO-NC, Date: 2024-05-24 Tentative Ruling

Judge: Cynthia A Freeland, Case: 37-2023-00030034-CU-CO-NC, Date: 2024-05-24 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - May 23, 2024

05/24/2024 01:30:00 PM N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited Contract - Other Motion Hearing (Civil) 37-2023-00030034-CU-CO-NC FAIRBANKS MONTECITO HOMEOWNERS ASSOCIATION VS MORIARTY [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Set Aside Default, 03/14/2024

Defendant Kathleen Marie Moriarty ('Defendant')'s motion to set aside entry of default is granted.

Initially, the court respectfully declines Defendant's request for the court to disregard Plaintiff Fairbanks Montecito Homeowners Association ('Plaintiff')'s opposition as untimely. California Code of Civil Procedure ('CCP') § 1005(b) provides, in relevant part, that '[a]ll papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days . . . before the hearing.' Cal. Code Civ. P. § 1005(b). Where, as here, an opposition is served electronically, the notice period is extended by two court days. See Cal. Code Civ. P. § 1010.6(a)(3)(B). On that basis, the court agrees that Plaintiff's opposition, which was filed and served on May 13, 2024, was untimely. In this instance, however, the court exercises its discretion and will overlook the foregoing procedural deficiency and consider Plaintiff's opposition given that Defendant has failed to demonstrate any resulting prejudice. See Gonzalez v. Santa Clara County Dept. of Social Services (2017) 9 Cal. App. 5th 162, 168.

On July 17, 2023, Plaintiff commenced this action by filing a Complaint against Defendant for: (1) breach of maintenance and indemnity agreement; (2) declaratory relief; and (3) attorney's fees and costs per the maintenance and indemnity agreement. See ROA No. 1. Defendant did not file an answer or other responsive pleading within the statutory time to do so. On November 21, 2023, Plaintiff requested, and the court entered, default against Defendant (the 'Default'). See ROA No. 14. On December 21, 2023, Plaintiff submitted an application for entry of default judgment; however, default judgment has not yet been entered in this matter. See ROA Nos. 15-21. Defendant now seeks an order setting aside the Default under CCP §§ 473(d) and (b). The court addresses each argument in turn.

First, the court finds that Defendant has not demonstrated entitlement to the requested relief under CCP § 473(d). CCP § 473(d) provides, in relevant part, that '[t]he court may . . . on motion of either party after notice to the other party, set aside any void judgment or order.' Cal. Code Civ. P. § 473(d). Defendant is correct that the court has the power to set aside entry of a default which is valid on its face yet void as a matter of law owing to improper service. See Hearn v. Howard (2009) 177 Cal. App. 4th 1193, 1199; Ellard v. Conway (2001) 94 Cal. App. 4th 540, 544. In this case, however, the court finds that Defendant has failed to demonstrate that Plaintiff did not effectuate proper substitute service of the summons and Complaint.

In relevant part, CCP § 415.20(b), which governs substituted service upon individuals, provides that: If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the Calendar No.: Event ID: TENTATIVE RULINGS

3074515 CASE NUMBER: CASE TITLE: FAIRBANKS MONTECITO HOMEOWNERS ASSOCIATION VS 37-2023-00030034-CU-CO-NC person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Post Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.

Cal. Code Civ. P. § 415.20(b).

'[CCP] Sections 415.20, subdivisions (a) and (b) authorize substitute service of process in lieu of personal delivery. Statutes governing substitute service shall be 'liberally construed to effectuate service and uphold jurisdiction if actual notice has been received by the defendant . . . . [Citation.]' Ellard, 94 Cal. App. 4th at 544 (quoting Bein v. Brechtel-Jochim Group, Inc. (1992) 6 Cal. App. 4th 1387, 1392).

'[A] 'defendant will not be permitted to defeat service by rendering physical service impossible.' [Citation.] 'The evident purpose of Code of Civil Procedure section 415.20 is to permit service to be completed upon a good faith attempt at physical service on a responsible person . . . .' [Citation.] Service must be made upon a person whose 'relationship with the person to be served makes it more likely than not that they will deliver process to the named party.' [Citation.]' Hearn, 177 Cal. App. 4th at 1202-1203 (quoting Bein, 6 Cal. App. 4th at 1393). What constitutes good faith or reasonable diligence has been the subject of litigation, and courts have held that generally two or three attempts to personally serve an individual at a proper place constitutes reasonable diligence to effectuate personal service. See Rodriquez v. Cho (2015) 236 Cal. App. 4th 742, 751; American Exp. Centurion Bank v. Zara, 199 Cal. App. 4th at 389. The San Diego County Superior Court has clarified further what constitutes the appropriate reasonable diligence necessary to effectuate substitute service by providing, in pertinent part, that: To qualify for other than personal service of a complaint and summons under Code of Civil Procedure section 415.20 et seq., reasonable diligence aimed at providing the defendant with actual notice must be established (e.g., personal service must be attempted on at least three different days at three different times of day). All attempts cannot be in the a.m. or all in the p.m. At least one of the three attempts must be before 8 a.m. or after 5:30 p.m., and at least one of the three attempts must be between the hours of 8 a.m. and 5:30 p.m. or on Saturday or Sunday at any time.

See San Diego Rules of Court, Rule 2.1.5.

In this case, the evidence shows that Plaintiff attempted to personally serve Defendant with the summons and Complaint at Defendant's residence on ten separate occasions between July 22 and August 23, 2023. See ROA No. 10; Diaz Decl., ¶ 3, Ex. B. The process server declared, under penalty of perjury, that he or she was unable to effectuate service upon Defendant after a due search, careful inquiry, and diligent attempts. This declaration establishes a presumption that the facts stated therein are true. See Cal. Evid. Code § 647; See Rodriguez v. Cho (2015) 236 Cal. App. 4th 742, 750.

Defendant bears the burden of providing evidence rebutting this presumption. See Rodriguez, 236 Cal. App. 4th at 750-751. Toward that end, Defendant has submitted declarations from herself, Justin Piva, and Joe Steiner, all of whom represent that they were at the property between July 23 and August 23, 2023 and never witnessed any attempt(s) to serve Defendant with any documents pertaining to this action. Plaintiff, for its part, questions the veracity of Defendant's evidence. That being said, the court need not reach that issue because, assuming for the sake of argument that Plaintiff's attempts at service between July 23 and August 23, 2023 were insufficient, the evidence demonstrates that Plaintiff effectuated proper substitute service on August 27, 2023.

More specifically, the evidence shows that Plaintiff's process server attempted service at the following dates and times: (1) August 25, 2023 at 7:03 p.m. ('Attempted service-unable to gain access, security Calendar No.: Event ID: TENTATIVE RULINGS

3074515 CASE NUMBER: CASE TITLE: FAIRBANKS MONTECITO HOMEOWNERS ASSOCIATION VS 37-2023-00030034-CU-CO-NC gate locked. Gated community, name not on call box. Waited 15 minutes but no traffic to follow in.'); (2) August 26, 2023 at 7:07 a.m. ('Attempted service-unable to gain access, security gate locked. Waited 15 minutes.'); and (3) August 27, 2023 at 11:00 a.m. ('Attempted service-effected substitute service[.]').

See ROA No. 8; Diaz Decl., Ex. A. Plaintiff's process server ultimately left the documents with Dagmar Steiner, who Defendant concedes was a co-occupant of the property at the time of service. Plaintiff then mailed the documents to Defendant's address on August 28, 2023. The foregoing is sufficient to establish proper substitute service upon Defendant after an exercise of reasonable diligence as contemplated under California law and the pertinent Rules of Court. Defendant concedes that Ms.

Steiner provided Defendant with copies of the summons and Complaint at some point in late August or early September 2023. See Moriarty Decl., ¶ 26.

Accordingly, to the extent Defendant seeks to set aside entry of the Default under CCP § 473(d), such request is denied.

Second, Defendant's contention that the Default must be set aside because Plaintiff failed to first provide Defendant with notice that it intended to seek entry of default is unavailing. Under California law, a plaintiff merely must provide a defendant with actual notice of the liability to which he or she may be subjected a reasonable period of time before default may be entered. See Behm v. Clear View Technologies (2015) 241 Cal. App. 4th 1, 10; Matera v. McLeod (2006) 145 Cal. App. 4th 44, 61. There is no evidence that Plaintiff failed to accomplish the foregoing. Defendant cites CCP § 583.130 and Lasalle v. Vogel (2019) 36 Cal. App. 5th 127 ('Lasalle') for the proposition that Plaintiff's alleged failure to provide Defendant with notice before seeking entry of default rendered the Default void. The court respectfully disagrees. CCP § 583.130 contains no such requirement. The statute merely reiterates the public policy that a plaintiff proceed with reasonable diligence in the prosecution of an action, and that trials on the merits are favored over dismissals for failure to diligently prosecute an action. See Cal. Code Civ. P. § 583.130. There is no evidence that Plaintiff was not reasonably diligent in the prosecution of this action. Moreover, Lasalle does not create a legal obligation to provide notice before entry of default; rather, the Fourth District Court of Appeal, relying on CCP § 583.310, simply noted that the failure to do so constitutes an ethical breach on counsel's part.

Finally, the court finds that Defendant has demonstrated entitlement to the requested relief under CCP § 473(b). CCP § 473(b) provides, in relevant part, that '[t]he 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 made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.' Cal. Code Civ. P. § 473(b). 'The test of whether neglect was excusable is whether ' 'a reasonably prudent person under the same or similar circumstances' might have made the same error. [Citations.]' Luri v. Greenwald (2003) 107 Cal. App. 4th 1119, 1129 (quoting Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal. 3d 270, 276).

'Mistake is not a ground for relief under section 473, subdivision (b), when 'the court finds that the 'mistake' is simply the result of professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law....'' Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal. App. 4th 215, 229-230 (quoting 8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial, § 155, p. 749).

In this case, the court finds that Defendant has met her burden of demonstrating that her failure to file an answer or otherwise plead to the Complaint was a result of excusable neglect. The evidence shows that Plaintiff effectuated proper substitute service upon Defendant on August 27, 2023. However, the parties' dispute dates back to as early as March 2022 when Plaintiff began sending Defendant letters concerning untrimmed palm fronds in Defendant's front and back yards. See Moriarty Decl. ¶¶ 6-7. In February 2023, Defendant received a letter from Plaintiff's counsel demanding that Plaintiff trim the palm fronds in her back yard as well as repair a wrought iron fence Defendant shared with her neighbor, Dan Townsend. Ibid., ¶ 8. Defendant received another letter in March 2023. Ibid., ¶ 10. Defendant contends that the trimming of the palm fronds and the repair of the fence were complete in September and October 2023. Ibid., ¶¶ 13-14. While Plaintiff commenced this action on July 17, 2023 and Defendant Calendar No.: Event ID: TENTATIVE RULINGS

3074515 CASE NUMBER: CASE TITLE: FAIRBANKS MONTECITO HOMEOWNERS ASSOCIATION VS 37-2023-00030034-CU-CO-NC received notice of same in August 2023, Defendant, who was not represented by an attorney at the time, did not believe she needed to respond to the Complaint because she was working with Plaintiff to correct the issues identified in the Complaint. On November 13, 2023, Plaintiff served Defendant with a Notice of Intention to Institute Foreclosure Proceedings stemming from alleged delinquent assessments and other fees, which prompted Plaintiff to hire counsel. On November 16, 2023, Defendant's counsel sent a letter of representation to Plaintiff. See Diaz Decl., Ex. D. While Plaintiff contends that it was appropriate to seek entry of default because this action does not concern delinquent assessments and other fees, the communications attached to Mr. Mudgett's declaration demonstrate that he has diligently attempted to globally settle all disputes between the parties – including those set forth in the Complaint.

Rather than work with Defendant's counsel in that regard, Plaintiff's counsel elected to seek entry of default on November 21, 2023 (only five days after receiving the initial letter of representation from Mr.

Mudgett). This was not appropriate under the totality of the facts and circumstances. Moreover, the court finds the existence of excusable neglect to the extent Defendant did not appreciate the difference(s) between the various disputes between the parties and how those disputes relate to the pending action.

Accordingly, the court grants Defendant's motion to set aside the Default under CCP § 473(b).

In light of the foregoing, the court grants the motion and sets aside the Default entered on November 21, 2023. Defendant is directed to file and serve her proposed 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, May 24, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of May 24, 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.

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