Judge Daniel M. Crowley, Case Number: 22STCV05849, Date: 2025-04-18 Tentative Ruling

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Defendant William Eric Ottens’ motion to set aside the entry of default and default judgment entered on December 19, 2022, and April 19, 2023, respectively, is granted. Ottens is ordered to file his Answer with the Court, to be marked as filed as of April 18, 2025.

Defendant William Eric Ottens (“Ottens”) (“Moving Defendant”) moves for this Court to set aside the default and default judgment entered against him on April 19, 2023, by Plaintiff Dext Capital, LLC on the grounds of lack of personal jurisdiction due to improper service of summons and failure to respond due to inadvertence, surprise, mistake, or excusable neglect. (Notice of Motion, pgs. 1-2; C.C.P. §473(b).) Defendant further moves on the basis service of the summons did not result in actual notice, and the judgment and/or default is void. (Notice of Motion, pg. 2; C.C.P. §§473.5, 473(d).)

On February 16, 2022, Plaintiff filed its operative Complaint against Ottens and Non-moving Defendants L.A. Salespeople, Inc. (“LA Salespeople”), Victory Equipment Company Inc. (“Victory Equipment”), Marcos Alfredo Beltran aka Marco Beltran (“Beltran”), and Isabella Marie Orlando (“Orlando”) (collectively, “Defendants”) alleging six causes of action. (See Complaint.)

On September 19, 2022, the Court granted Plaintiff’s application for Order for Publication in the Metropolitan News Company. (9/19/22 Order for Publication.) On October 18, 2022, Plaintiff filed proof of publication. (10/18/22 Proof of Publication.) On December 19, 2022, default was entered against Ottens. On April 19, 2023, Default Judgment was entered in this matter against Defendants in the total amount of $132,668.54.

On November 25, 2024, Ottens filed the instant motion. Plaintiff filed its opposition on March 3, 2025. Defendant filed his reply on March 4, 2025.

The law favors judgments on the merits. Thus, on a motion for relief from default, “doubts must be resolved in favor of relief, with an order denying relief scrutinized [on appeal] more carefully than an order granting it.” (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 134.)

The trial court has broad discretion to vacate the judgment and/or the clerk’s entry of default that preceded it. However, that discretion can be exercised only if the moving party establishes a proper ground for relief, by the proper procedure, and within the proper time limits. (See Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.)

C.C.P. §473(d) provides, “The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”

C.C.P. §473.5(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.”

Here, under C.C.P. §473.5(a) Ottens’ motion is timely because default judgment was entered against him on April 19, 2023; two years has not elapsed since the date default judgment was entered.

Ottens was served by publication in the Metropolitan New Company pursuant to an Order for Publication granted by Judge Katherine Chilton on September 19, 2022. The Declaration of Barry Ferns in support of Plaintiff’s application for publication of summons states that Plaintiff attempted to serve Ottens at two addresses in California and one attempt to serve Ottens at an address in Texas. (9/14/22 Decl. of Ferns ¶¶4(a)-(c), Exhs. 1-3.) Ferns declared that Plaintiff was unable to serve Ottens and felt there was no alternative but to “have an Order for Service by Publication of the Summons in Metropolitan News Company, which is a newspaper of general circulation and which has the best change of providing the Defendant with notice of the within lawsuit.” (9/14/22 Decl. of Ferns ¶7.)

The court shall order the summons to be published in a named newspaper, published in this state, that is most likely to give actual notice to the party to be served. If the party to be served resides or is located out of this state, the court may also order the summons to be published in a named newspaper outside this state that is most likely to give actual notice to that party. The order shall direct that a copy of the summons, the complaint, and the order for publication be forthwith mailed to the party if his or her address is ascertained before expiration of the time prescribed for publication of the summons. Except as otherwise provided by statute, the publication shall be made as provided by Section 6064 of the Government Code unless the court, in its discretion, orders publication for a longer period.

Here, the Order for Publication should have required Plaintiff to order the summons be published in a newspaper in Texas in addition to publication in the Metropolitan News Company because Plaintiff’s diligent inquiry into Ottens’ whereabouts yielded an address in The Woodlands, Texas in addition to addresses in California. Because Plaintiff did not apply for publication in both Texas and California, Plaintiff did not provide Ottens with actual notice of the summons, rendering the default judgment entered against Ottens void pursuant to C.C.P. §473.5.

In compliance with the requirements for moving to set aside default and for leave to defend the action, Ottens has attached a copy of his answer to Plaintiff’s complaint. (C.C.P. §473.5(b); Decl. of Campbell ¶8, Exh. E.) Further, Plaintiff filed a declaration stating that his lack of actual notice in time to defend the action was not caused by his avoidance of service or inexcusable neglect. (See Decl. of Ottens ¶¶3-4 [“I had resided at 1481 Sawdust Road, #915, The Woodlands, TX 77380, from approximately October 2010 to February 2023. This is the same address identified on the CA Statement of Information filed in 2016 and attached as Exhibit 14 to Plaintiff’s Declaration in Support of Default Judgment (Exhibit 1 hereto). A review of Plaintiff’s Motion for Publication reveals that at no time did Plaintiff attempt to [serve] me at my Sawdust Road home address, despite being in possession of the CA statement of Information. Nor was service ever attempted [at] other valid addresses.”].)

Accordingly, Ottens’ motion for relief from entry of default and default judgment is granted. Ottens is ordered to file his Answer with the Court, to be marked as filed as of April 18, 2025.

Ottens’ motion to set aside the entry of default and default judgment entered on December 19, 2022, and April 19, 2023, respectively, is granted. Ottens is ordered to file his Answer with the Court, to be marked as filed as of April 18, 2025.

Hon. Daniel M. Crowley

Judge of the Superior Court