Judge: Deirdre Hill, Case: 22TRCV01540, Date: 2023-05-04 Tentative Ruling

Case Number: 22TRCV01540    Hearing Date: May 4, 2023    Dept: M

Hearing Date:                         May 4, 2023

Moving Parties:                      Defendants

Responding Party:                  Plaintiff HL Group 2 Limited Partnership

Motion to Set Aside and Vacate Entry of Default

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

RULING

            The motion is GRANTED.  The defaults entered against moving defendants are set aside and vacated.  Defendants are ordered to file and serve a responsive pleading forthwith.

BACKGROUND

On December 20, 2022, plaintiff HL Group 2 Limited Partnership filed a verified complaint against Trang Luyen, Truc Luyen, Huan Luyen, Loanco Mortgage Services LLC, and Stephanie Lan Nguyen for (1) slander of title, (2) cancellation of instrument, (3) intentional interference with contractual relations (between partners), (4) intentional interference with contractual relations (third parties), (5) notarial misconduct, and (6) declaratory relief.

            On December 23, 2022, the court granted plaintiff’s ex parte application for a TRO and set an OSC re preliminary injunction for January 19, 2023.

On December 29, 2022, the court granted plaintiff’s ex parte application to modify or amend the TRO (1) to delete para. 2 as to the trustee's sale and (2) to add a paragraph as to when the opposition and reply are due as to the OSC re preliminary injunction.

On March 30, 2023, Stephanie Lan Nguyen filed a cross-complaint for indemnity, declaratory relief, negligence, abuse of process, IIED, and interference with prospective economic advantage.

LEGAL AUTHORITY

“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. . . .”

DISCUSSION

            Under CCP §473(b), defendants request that the court vacate the defaults entered against them based on mistake, inadvertence, surprise, or excusable neglect.  A default was entered on February 9, 2023 against Truc Luyen.  A default was entered on February 10, 2023 against Loanco Mortgage Services.  A default was entered on February 24, 2023 against Trang Luyen.  A default was entered on March 22, 2023 against Huan Luyen.

                        Trang Luyen

            The proof of service filed on January 18, 2023, indicates that defendant was substitute served on January 6, 2023 at 36689 Oak Meadows Pl, Murrieta on “male adults who identified himself as husband of defendant Trang Luyen.”

            In her declaration, she states that after she was served with the complaint, she sought attorney representation.  She asserts that plaintiff never attempted to have her personally served prior to the purported sub-service.  She informed plaintiff’s attorney that she was seeking representation.  She states “I did not evade service nor did I intend to delay in filing a response to the complaint.  I wanted to ensure that I retained counsel to represent me from the very start of my defense to its conclusion.”

            In opposition, plaintiff argues that defendant had actual notice and that the process server exercised due diligence.  Plaintiff also contends that defendant did not contact counsel that she was seeking representation.

                        Truc Luyen

            The proof of service filed on January 18, 2023, indicates that defendant was substitute served on December 27, 2022 at 578 Turnberry Drive, Orange on “male adults who identified himself as husband of Truc Luyen.”

            In her declaration, she states that her residence is located on Turnberry Drive but that she was not sub-served at that address.  “I was informed by Trang Luyen that someone left the summons and complaint [] at her residence.  I do not live at Trang’s residence nor do I have any connection to her residence.”  She also asserts that plaintiff never attempted to have her personally served prior to purported sub-service.  She states that after Trang informed her that a copy of the summons and complaint was left at her residence, she sought representation by attorney.  She states that she did not evade service and did not intend to delay in filing a response to the complaint.

            In opposition, plaintiff argues that defendant had knowledge of the complaint and was properly served.

                        Huan Luyen

            The proof of service filed on January 18, 2023, indicates that defendant was substitute served on January 13, 2023 at 17501 Irvine Blvd., Suite 205, Tustin, Zerocom Real Estate Inc on “Yuliana Reyes, person apparently in charge of office where Huan Luyen works.”

            Huan Luyen states in his declaration that the address where he was purportedly served is not his residence or work address and that he does not have a relationship with that address and that Zerocom Real Estate’s business filings with the Secretary of State shows a different address.  He also states that plaintiff never attempted to have him personally served prior to the purported sub-service.

            In opposition, plaintiff argues that defendant had actual notice of the complaint and that he was properly served at an address he listed with the California Department of Real Estate as his “main” office address and that he is the “Designated Officer” of Zerocom Real Estate with its main office in Tustin and a mailing address in Orange.

                        Loanco Mortgage Services, LLC

             The proof of service filed on January 18, 2023, indicates that defendant was substitute served on December 31, 2022 at 4532 E. Orange Grove Ave., Orange on “unidentified adult at the offices of Loanco Mortgage Services, LLC.”

            Huan Luyen states in his declaration that he is one of the members of Loanco and that after Loanco was served with the complaint, he sought representation by attorney.  “It was [my] understanding that Plaintiff’s attorney knew that I was seeking representation.  Even though Plaintiff’s counsel knew that I was seeking representation, he still defaulted Loanco.”  Further, defendant asserts, the Orange Grove address is a residence not an office.

            In opposition, plaintiff argues that Loanco had actual notice of the complaint and that the mailing and principal office address of Loanco is the address where it was served.

            The court rules as follows:  The court finds that defendants have met their burden of showing mistake, inadvertence, surprise, and/or excusable neglect.  The court notes that although it appears that defendants were of the complaint before they were defaulted, the proofs of service as to the individuals are defective on their face because they do not show reasonable diligence in attempting personal service, as required by CCP §415.20(b) (“If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served . . . . .”).  Further, the declaration of process server Walter Kenny (who is not a registered California process server) indicates that the proof of service as to Trang Luyen contains an error—service occurred on January 3, 2023, rather than January 6.  As to substitute service on Truc Luyen, Kenny’s declaration states that he left the summons and complaint package at the front door of the house, although the proof of service does not indicate.  Rather, it states that it was left with “male adults who identified himself as husband of Truc Luyen,” which appears to be in error.  Also, although the Department of Real Estate shows that Huan Luyen is a “Designated Officer” for Zerocom Real Estate, main office at the Tustin address, his declaration indicates that he does not reside or work at that address.  As to defendant Truc Luyen, although the proof of service indicates she was served at her residence, she presents evidence that she was improperly served at Trang Luyen’s address.  Defendants also indicate that they sought attorney representation before they were defaulted and purportedly informed plaintiff’s counsel before defaults were entered, although plaintiff’s counsel denies having any such contact.

The motion is GRANTED.  Defendants have shown that discretionary relief is warranted.

Defendants are ordered to give notice of the ruling.