Judge: Daniel M. Crowley, Case: BC709527, Date: 2022-12-22 Tentative Ruling

Case Number: BC709527    Hearing Date: December 22, 2022    Dept: 28

Motion to Vacate Entries of Default Judgment

Having considered the moving papers, the Court rules as follows.  No opposing papers were filed.

BACKGROUND

            On June 11, 2018, the following individuals commenced the present action by filing a Complaint against Morten Osvik and Kristoffer Knudsen (collectively, “Defendants”): (1) Annette Sims, (2) Jeno Norman, (3) Lamencia Figures, (4) Delmecia Figures, (5) Tyron Norman, a minor, by and through his guardian ad litem, Delmecia Figures, (6) Darrlyn Figures, (7) Vershawn Williams, by and through his guardian ad litem, Darrlyn Figures, and (8) Semaja Barney, by and through his guardian ad litem, Darrlyn Figures (collectively, “Plaintiffs”).  Plaintiffs’ Complaint alleges the following causes of action: (1) General Negligence; and (2) Motor Vehicle.  Plaintiff’s Complaint alleges Plaintiffs were lawfully riding in a motor vehicle on I-105 Freeway in Los Angeles, California when Defendants’ motor vehicle “abruptly cut-off” Plaintiffs’ motor vehicle, causing a collision.

            On August 12, 2020, Plaintiffs operative Complaint was ordered dismissed, without prejudice, by this Court after Plaintiffs failed to appear at an Order to Show Cause Re: Dismissal for Failure to File Proof of Service of Summons and Complaint.

            On August 21, 2020, Plaintiffs filed a Motion to Vacate Dismissal of Complaint and To Reinstate Matter to Active Calendar.

            On December 21, 2020, Plaintiffs’ Motion to Vacate Dismissal of Complaint and To Reinstate Matter to Active Calendar was granted.  The Court ordered the dismissal of Plaintiffs’ Complaint set aside and vacated.

            On March 10, 2021, Plaintiffs filed Applications for Publication, requesting an Order permitting Plaintiffs’ service of the operative Complaint upon Defendants by publication in the “Metropolitan News”.

            On March 29, 2021, Plaintiffs’ Applications for Publications were granted, and Orders For Publication were signed and issued by this Court.

            On June 7, 2021, Plaintiffs filed a Proof of Publication, indicating notice of the present action was published in “Metropolitan News” on the following dates: May 12, 2021, May 19, 2021, May 26, 2021, and June 2, 2021.

            On August 2, 2021, pursuant to Plaintiffs’ filing of a Request for Entry of Default, this Court entered default against Defendant Kristoffer Knudsen.

            Additionally on August 2, 2021, pursuant to Plaintiffs’ filing of a Request for Entry of Default, this Court entered default against Defendant Morten Osvik.

            On April 12, 2022, pursuant to a Request for Dismissal, the following Plaintiffs were dismissed from this action: (1) Jeno Norman; (2) Lamencia Figures; (3) Tyron Norman, a minor, by and through his guardian ad litem, Delmecia Figures; (4) Vershawn Williams, by and through his guardian ad litem, Darrlyn Figures; (5) Semaj Barney, by and through his guardian ad litem, Darrlyn Figures, and (6) Does 1 through 25.  The following Plaintiffs remain in the present action: (1)  Annette Sims, (2) Delmecia Figures, and (3) Darrlyn Figures.

            Additionally April 12, 2022, Plaintiffs Annette Sims, Delmecia Figures, and Darrlyn Figures, each, filed separate Requests for Default Judgement against Defendants.

            On May 13, 2022, the Court ruled as follows upon the Requests for Default Judgment filed by Plaintiffs Annette Sims, Delmecia Figures, and Darrlyn Figures.  The Court denied Plaintiff Delmecia Figures’ Request for Default Judgment against Defendants, noting Plaintiff Delmecia Figures failed to file mandatory form CIV-100.  The Court granted Plaintiff Annette Sims’ Request for Default Judgment against Defendants, in an amount of $14,979.30.  The Court granted Plaintiff Darrlyn Figures’ Request for Default Judgment against Defendant, in an amount of $12,825.00.  The Court continued the hearing upon Plaintiff Delmecia Figures’ Request for Default Judgment to June 15, 2022 in order to allow Plaintiff to file an amended request for default judgment.

            Additionally on May 13, 2022, the Court signed and entered Judgment against Defendants, in favor of Plaintiff Annette Sims, in an amount $14,979.30. 

            Additionally on May 13, 2022, the Court signed and entered Judgment against Defendants, in favor of Plaintiff Darrlyn Figures, in an amount of $12,825.00.

            On June 15, 2022, noting Plaintiff Delmecia failed to submit an amended request for default judgment, and noting no appearances have been made by either party, the Court ordered the operative Complaint filed by Plaintiffs dismissed, without prejudice.

            On September 20, 2022, Defendants, collectively, filed the present Motion to Vacate Entries of Default Judgment.

            There are no upcoming hearing or trial dates set in this action.

PARTY’S REQUESTS

            Defendants move for an Order vacating the two default judgments entered by this Court on May 13, 2022, in favor of Plaintiffs Annette Sims and Darrlyn Figures, on the ground Defendants failed to receive actual notice of the operative Complaint in sufficient time to defend this action, pursuant to Code of Civil Procedure section 473.5.  (Code Civ. Proc., § 473.5, subd. (a).) 

LEGAL STANDARD

            “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.”¿ (Code Civ. Proc., § 473.5, subd. (a).)¿¿¿ 

¿           “A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.”¿ (Code Civ. Proc., § 473.5, subd. (b).)¿ 

“Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.”¿ (Code Civ. Proc., § 473.5, subd. (c).)¿ 

DISCUSSION

            The Court concludes the two default judgments entered against Defendants, and in favor of Plaintiffs Annette Sims and Darrlyn Figures, on approximately May 13, 2022, may be properly vacated, pursuant to Code of Civil Procedure section 473.5, subdivision (c).  (Code Civ. Proc.,  § 473.5. subd. (c).) 

The Court finds Defendants’ present Motion has been made within the time period enumerated within Code of Civil Procedure section 473.5, subdivision (a).  (Code Civ. Proc., § 473.5, subd. (a).)  Code of Civil Procedure section 473.5, subdivision (a) mandates Defendants’ notice of motion to set aside a default judgment must be filed and served on the earlier of the following dates: “two years after entry of [the] default judgment” or “180 days after service . . . of a written notice that the default or default judgment has been entered.”  (Ibid.)  The Court observes Defendants have never been served with a “written notice” that the two default judgments had been entered by this Court.  The Court’s record does not reflect that a proof of service has been filed by Plaintiffs, evidencing that Plaintiffs served the two default judgments upon Defendants.  Further, Defendants’ submitted affidavits do not confirm receipt of any “written notice” served by Plaintiffs.  (Osvik Decl., ¶ 7 [“I first learned of the legal proceedings on August 8, 2022, after being contact[ed] by my insurance company in regards to a judgment against me.”]; Knudsen Decl., ¶ 7 [[“I first learned of the legal proceedings on August 8, 2022, after being contact[ed] by my insurance company in regards to a judgment against me.”].)  It follows, as Defendants were never served with a “written notice that the . . . default judgment [was] entered,” the appropriate time period for the filing of the present Motion is “two years after entry of [the] default judgment”.  (Code Civ. Proc., § 473.5, subd. (a).)  Default judgment was entered by this Court on May 13, 2022.  Defendants filed the present Motion on September 20, 2022.  Accordingly, Defendants’ present Motion is timely as Defendants filed and served the Motion within two years from the date of entry of default judgment. 

The Court additionally finds Defendants did not receive actual notice of this lawsuit in sufficient time to defend against Plaintiffs’ Complaint, and Defendants lack of notice was not a result of Defendants’ avoidance of service or inexcusable neglect.  (Code Civ. Proc., § 473.5, subd. (c).)  Defendants were purportedly served with Plaintiffs’ Complaint pursuant to publication within “Metropolitan News” on May 12, 2021, May 19, 2021, May 26, 2021, and June 2, 2021.  (Dineros Decl., ¶¶ 8-9.)  However, such publication did not operate to provide Defendants with actual notice of Plaintiffs’ operative Complaint as Defendants were not residents of the State of California during this time period, and indeed, moved to Norway nearly two years earlier in June of 2018.  (Osvik Decl., ¶¶ 5-6 [“On June 16, 2018, I departed California and returned to Norway, where I have since permanently resided. . . . At no time since the commencement of legal proceedings in this matter, did I receive actual notice of said legal proceedings.”]; Knudsen Decl., ¶¶ 5-6 [“On June 9, 2018, I departed California and returned to Norway, where I have since permanently resided. . . . At no time since the commencement of legal proceedings in this matter, did I receive actual notice of said legal proceedings.”].)  Defendants’ lack of actual notice was not a result of Defendants’ avoidance of service or inexcusable neglect, but geographic absence from the area where publication occurred.  (Osvik Decl., ¶ 8 [“At no time did I intend to evade the judicial process and avoid service of the Complaint.”]; Knudsen Decl., ¶ 8 [“At no time did I intend to evade the judicial process and avoid service of the Complaint.”].) 

            The Court further finds Defendants have appropriately included with the present Motion a copy of the proposed Answer to be filed, in accordance with Code of Civil Procedure section 473.5, subdivision (b).  (Code Civ. Proc., § 473.5, subd. (b).)

CONCLUSION

            Defendants’ Motion to Vacate Entries of Default Judgment is GRANTED.  The Court orders the two default judgments entered against Defendants, and in favor of Plaintiffs Annette Sims and Darrlyn Figures, on approximately May 13, 2022, effectively vacated.  The Court instructs Defendants to file the proposed Answer, included as Exhibit J of the Declaration of Jason C. Dineros, within the Reply brief.

            The Court sets the matter for trial on October 27, 2023 at 10:00 a.m. and for a Final Status Conference on October 13, 2023 at 10:00 a.m.  Both will be in Dept. 28.  Discovery and Law and Motion cut-offs track the October 27, 2023 trial date.

            Defendants are ordered to give notice of this ruling.

Defendants are ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.