Judge: George F. Bird, Jr., Case: 19CMCV00206, Date: 2023-01-31 Tentative Ruling

“INSTRUCTIONS:
If the parties wish to submit on the tentative ruling and avoid a court
appearance on the matter, the moving party must:

1. Contact the opposing party and all other
parties who have appeared in the action and confirm that each will submit on the
tentative ruling.

2. No later than 4:00 p.m. on the court day
before the hearing, call the Courtroom (310-761-4302) advising that all parties
will submit on the tentative ruling and waive hearing; and

3. Serve notice of the Court's ruling on all
parties entitled to receive service.

If this procedure is followed, when the case is
called the Court will enter its ruling on the motion in accordance with its
tentative ruling. If any party declines to submit on the tentative ruling, then
no telephone call is necessary, and all parties should appear at the hearing.
If there is neither a telephone call nor an appearance, then the matter may
either be taken off calendar or ruled on. 

Case Number: 19CMCV00206    Hearing Date: January 31, 2023    Dept: B

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – SOUTH CENTRAL DISTRICT

I.       BACKGROUND  

            Plaintiff CREDITORS ADJUSTMENT BUREAU, INC. (“Plaintiff”) filed the Complaint on July 10, 2019, against Defendant Nunez General Contractors, Inc. (“Defendant”) alleging Defendant failed to pay Plaintiff insurance premiums under a worker’s compensation policy Defendant contracted with Plaintiff for. (Complaint (“Compl.”), ¶¶ 10, 11, 12, 13.) On April 28, 2021, the court was notified that the parties had come to a conditional settlement of the entire case (the “Stipulation Agreement”). Plaintiff alleges that Defendant defaulted on one of the required payments under the Stipulation Agreement between the parties and, after proper notice was served as directed by the agreement, a judgment was entered against Defendant for $110,010.11. Defendant now brings this Motion to Set Aside/Vacate Judgment.

II.       MOTION TO SET ASIDE/VACATE JUDGMENT

A.    Motion to Set Aside/Vacate Judgment filed January 9, 2023.

            Under Code of Civil Procedure section 1005, subdivision (b), notice of a motion to vacate must be served 16 court days before the hearing. If notice is sent by mail, 5 calendar days are added to the date. (Code Civ. Proc., § 1005, subd. (b).) The Proof of Service attached to the Motion to Set Aside/Vacate Judgment states that service was sent by mail on January 6, 2023. For service to be timely, it must have been sent by December 30, 2022. Because Plaintiff has submitted an opposition, the Court will excuse the improper notice and consider the motion on the merits.

            Judgment was entered against Defendant on September 26, 2022. Defendant brings this motion pursuant to Code of Civil Procedure, 473, subdivision (b). Defendant argues that service of the original Summons and Complaint was improper, that Defendant never received notice of the defaulted payment, and Defendant attempted to reach out to the Plaintiff to discuss his financial situation, but Plaintiff did not respond. (Decl. of Enrique Nunez, ¶¶ 2, 3; Motion to Set Aside/Vacate Default Judgment, p. 1:12-17.)

B.     Opposition filed January 23, 2023.

            Plaintiff presents several arguments in opposition. Plaintiff states that they complied with the notice requirements of the Stipulation Agreement and properly sought judgment after the default. (Opposition, p. 2:1-28.) Next, Plaintiff argues that service of the Complaint was proper, and Defendant has failed to properly serve the Motion to Set Aside/Vacate Judgment. (Opposition, pp. 3-4.) Finally, Plaintiff argues that Defendant failed to satisfy Code of Civil Procedure section 473 because Defendant has not shown any mistake, inadvertence, surprise, or excusable neglect. (Opposition, pp. 5-7.) 

III.       LEGAL STANDARDS

            “(b) The 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 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….” (Code Civ. Proc., § 473, subd. (b).)

            “While section 473 is remedial and should be liberally construed, nevertheless the moving party has the burden of showing that the default was entered through ‘mistake, inadvertence, surprise or excusable neglect’ (s 473), which he must establish by a preponderance of the evidence (Luz v. Lopes, 55 Cal.2d 54, 61—62, 10 Cal.Rptr. 161, 358 P.2d 289); in the absence of such showing the default may not be set aside. (Yarbrough v. Yarbrough, 144 Cal.App.2d 610, 614—615, 301 P.2d 426; Gudarov v. Hadjieff, 38 Cal.2d 412, 418, 240 P.2d 621; Beard v. Beard, 16 Cal.2d 645, 647, 107 P.2d 385.).” (Goodson v. Bogerts, Inc. (1967) 252 Cal.App.2d 32, 38 [60 Cal.Rptr. 146, 150].)

IV.       DISCUSSION

A.    Service of Summons and Complaint

            “A summons may be served on a corporation by delivering a copy of the summons and the complaint by any of the following methods: (a) To the person designated as agent for service of process….” (Code Civ. Proc., § 416.10, subd. (a).) The Proof of Service document states that Enrique Covarrubias Nunez – agent for service of process was served on July 18, 2019, at the address of 11022 Pope Ave., Lynwood, CA 90262. (Proof of Service filed July 29, 2019.) When evaluating service of process, “[t]he provisions of this chapter should be liberally construed to effectuate service and uphold the jurisdiction of the court if actual notice has been received by the defendant….” (Ramos v. Homeward Residential, Inc. (2014) 223 Cal.App.4th 1434, 1443 [168 Cal.Rptr.3d 114, 121].) Defendant declares he received a copy of the Summons and Complaint. (Decl. of Enrique Nunez, ¶ 2.) Defendant makes no argument that the time of service impacted his ability to defend the lawsuit.

            Service is proper because Defendant had actual notice of the suit.

B.     Compliance with the Stipulation Agreement

            The Stipulation Agreement between the parties states “IT IS FURTHER STIPULATED AND AGREED that in the event Defendant should default in any payment when due, as hereinabove set forth, Plaintiff shall provide Defendant's Attorney, Gavril T. Gabriel, Esq.; with a ten (10) day written notice of said default. Said notice shall be sent by email to ggabriel@gtglaw.org and regular mail to: The Law Offices of Gavril T. Gabriel, 8255 Firestone Blvd, Ste 209, Downey, CA 9024. Plaintiff may, on the eleventh (11th) day immediately following said written notice of default, declare the then entire unpaid balance immediately due and payable together with reasonable attorney's fees incurred in the collection of said obligation if said default has not been cured. In such event, judgment shall be immediately entered in the sum of $161,208.11 together with reasonable attorney's fees in favor of Plaintiff and against Defendant, less any sums received by Plaintiff from said Defendant pursuant to the terms of this Stipulation.” (Stipulation for Entry of Judgment filed September 2, 2022.)

            Plaintiff states that they mailed notice of the defaulted payment, in accordance with the Stipulation Agreement, to ggabriel@gtglaw.org and regular mail to: The Law Offices of Gavril T. Gabriel, 8255 Firestone Blvd, Ste 209, Downey, CA 9024 on August 5, 2022. (Opposition, p. 2:16-25.) The Court finds that the Stipulation Agreement did not require Plaintiff to notify Defendant directly, thus the Court will not set aside the judgment entered because Defendant was not directly notified of the defaulted payment. Plaintiff did not seek judgment until September 2, 2022, which is 27 days after the notice of defaulted payment was sent to Defendant’s counsel. The Court finds that Plaintiff complied with the Stipulation Agreement terms of notice and seeking judgment.

C.     Merits of the Motion to Set Aside/Vacate Judgment

            Any arguments pertaining to service of the Summons, Complaint, notice of default, and Motion to Set Aside/Vacate Judgment have been addressed above. The only remaining argument from Defendant is in his declaration which states he attempted to contact Plaintiff about his financial situation, but Plaintiff did not respond. (Decl. of Enrique Nunez, ¶ 2.) Defendant does not attempt to argue that he did not miss a payment or that Plaintiff is not entitled to seek a judgment under the Stipulation Agreement. Though Plaintiff did not respond to Defendant’s requests to modify the Stipulation Agreement, Plaintiff was under no obligation to respond to Defendant. Defendant has not demonstrated a mistake, inadvertence, surprise, or excusable neglect which would allow the Court to set aside the judgment entered.

            Because Defendant failed to satisfy his burden of proof, the Motion to Set Aside/Vacate Default Judgment is DENIED.  

V.       CONCLUSION

             The Court DENIES the Motion to Set Aside/Vacate Default Judgment.

Dated: January 31, 2023                                             __________________________________

                                                                                                Judge of the Superior Court