Judge: Deirdre Hill, Case: 21TRCV0786, Date: 2022-08-02 Tentative Ruling

Case Number: 21TRCV0786    Hearing Date: August 2, 2022    Dept: M

Hearing Date:                          August 2, 2022

Moving Parties:                      Defendants Cargo Express Group, Inc. dba Cargo Express Trucking and Eagle Freight Service LLC

Responding Party:                  Plaintiffs Milestone Equipment Company LLC and Milestone Chassis Company LLC

Motion to Set Aside Default

            The court considered the moving, opposition, and reply papers.

RULING

            The motion is DENIED.

BACKGROUND

On October 26, 2021, plaintiff Milestone Equipment Company LLC and Milestone Chassis Company LLC filed a verified complaint against Nexxgen Enterprises, Inc., 3 Ocelots, Incorporated dba Nexxgen Enterprises, Pacific Sintered Metals, Caimax Cargo Express Trucking Inc., Eagle Freight, Inc., Performance Composites, Inc., Pierpoint Trans Line Inc., Seko Worldwide, LLC, Owl Trans, Inc., West Coast Trucking Enterprises, Inc., and HK Logistics for (1) breach of contract, (2) replevin, (3) conversion, and (4) injunctive relief.

On November 1, 2021, plaintiffs filed a request for dismissal as to Eagle Freight, Inc.

On November 2, 2021, plaintiffs filed an order for writ of possession.

On November 5, 2021, plaintiffs filed amendments to complaint designating Cargo Express Group Inc. dba Eagle Freight Services LLC as Doe 1 and Alcom Intermodal as Doe 2.

On November 18, 2021, plaintiffs filed an amendment designating Old West Transport Inc. as Doe 3.

On November 19, 2021, plaintiffs filed requests for dismissal as to OWL Trans, Inc. and Pierpoint Trans Line Inc.

On December 7, 2021, the court granted an amended order for writ of possession.

On December 14, 2021, plaintiffs filed a request for dismissal as to defendant SEKO Logistics LAX.

On December 15, 2021, plaintiffs filed a request for dismissal as to SEKO Worldwide, LLC dba SEKO Logistics LAX.

On March 3, 2022, plaintiffs filed a request for dismissal as to West Coast Trucking Enterprises, Inc.

On March 7, 2022, plaintiffs filed a request for dismissal as to Pacific Sintered Metals, a division of PSM Industries Inc.

On April 21, 2022, plaintiffs filed a request for dismissal as to Performance Composites, Inc.

On April 21, 2022, a default was entered against Cargo Express Group Inc., dba Eagle Freight Services LLC.

On July 19, 2022, Dept. F in Norwalk denied the notice of related case as to case no. 22NWCV00275.

LEGAL AUTHORITY

CCP §473(b) states, in part:  ““The court may, upon 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. . . .”

CCP §473.5(a) states, in relevant part:  “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.”

The phrase “actual notice” means “genuine knowledge of the party litigant” and does not include constructive or imputed notice to the client.  Tunis v. Barrow (1986) 184 Cal. App. 3d 1069, 1077.

CCP §473.5(b) requires that “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.”

CCP §473.5(c) allows “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.”

“[A] default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.”  Dill v. Berquist (1994) 24 Cal. App. 4th 1426, 1444.  “Where a party moves under section 473(d) to set aside ‘a judgment that, though valid on its face, is void for lack of proper service, the courts have adopted by analogy the statutory period for relief from a default judgment’ provided by section 473.5, that is, the two-year outer limit.”  Trackman v. Kenney (2010) 187 Cal. App. 4th 175, 180 (citations omitted).  “Thus, defendant cannot assert under section 473(d) that the judgment, although facially valid, is void for lack of service.”  Id. at 181.

DISCUSSION

Defendants Cargo Express Group, Inc. dba Cargo Express Trucking and Eagle Freight Service LLC request that the court set aside the default entered against Cargo Express Group Inc., dba Eagle Freight Services LLC on April 21, 2022.

The court notes that defendants do not cite to any authority under which they are moving.

On November 1, 2021, plaintiffs filed a request for dismissal as to Eagle Freight, Inc.   On November 5, 2021, plaintiffs filed an amendment designating Cargo Express Group Inc. dba Eagle Freight Services LLC as Doe 1.  On April 21, 2022, plaintiffs filed a request to enter default and default was entered.

            Defendants assert that the entity that was defaulted does not exist and that Cargo Express and Eagle Freight are two separate entities.  See Sam Choi decl. and Margaret Morrow decl., ¶6, Exh. 4 (certificates of status).  Defendants also contend that because Eagle Freight was dismissed on April 1, 2022, a default cannot be entered against it.

            Defendant Cargo Express’ president Sam Choi states in his declaration that he does “not recall receiving the verified complaint or any other documents purportedly served” in February 2022.  He states that the first notice that he had of this lawsuit was on April 25, 2022, when he received the verified complaint in the mail.  He also states that “[a]ny assertion that we evaded service is undermined by the fact that we were in the midst of filing our own complaint but it would have been easier to file a cross-complaint in this action.”  Defendant further contends that it has a meritorious defense.

            The proof of service of summons filed on January 31, 2022, indicates that the party served was “Cargo Express Group Inc. dba Eagle Freight Services LLC” and that the person served was Phillip Choi, agent for service of process, at 15414 S. Figueroa St., Gardena, via person in charge Victoria Lopez, on January 27, 2022.  The default was entered based on this proof of service.

            In opposition, plaintiffs contend that they properly named and served defendant entity.  Plaintiffs assert that when Milestone set up Cargo Express as a customer, Cargo Express provided a W-9 form dated June 11, 2020 indicating that the name of the entity is “Cargo Express Group, Inc. dba Eagle Freight Services LLC.”  Plaintiffs also contend that on January 25, 2021, Cargo Express entered into a Master Lease Agreement and Leasing Schedule with Milestone under the name “Cargo Express Group Inc. dba Eagle Freight Services LLC.” 

Plaintiffs also argue that defendant attempted to evade service.  When the process server attempted at 15414 South Figueroa Street, Gardena (the same address on Cargo Express Group’s Articles of Incorporation), the process server was turned away because “the entity was not located there.”  On December 2, 2021, plaintiffs’ process server again attempted service at the same address and was informed that “there is no Sam Choi there.”  Plaintiffs assert that they sought assistance from the Sheriff’s Department who attempted service on February 16 and 17, 2022, and served defendant on February 18.  See Carolee A. Hoover decl. and proof of service filed on July 26, 2022 (indicating that “Cargo Express Group Inc. dba Eagle Freight Services LLC” was served at same address by the Sheriff’s Department on February 18, 2022 by Deputy Linda J. Andrews-Simmons on Danny Choi, the manager and authorized agent of Cargo Express).

Plaintiff further contends that defendant does not have a meritorious defense as to at least one chassis, which plaintiffs allege is in the possession of defendant, because it was “pinging” at its location.

            The motion is DENIED.  Defendant has not met its burden.  It does not cite to any authority under which it seeks to set aside the default.  It has not shown that the default was entered as a result of its mistake, inadvertence, surprise, or excusable neglect.  It also has not shown that it did not have actual notice or that it was not evading service, particularly because the proof of service by the Sheriff’s department supports that defendant was properly served and that it had notice as the Sheriff’s department personally served the manager and authorized agent.

            Plaintiffs are ordered to give notice of ruling.