Department 30, Spring Street Courthouse

December 6, 2022 

20STCV10667

Motion to Set Aside Default Judgment filed by American Curvet Investment LLC

The parties are to appear (remotely or in person).

This is an action for negligent hiring, respondeat superior, assault, battery, and loss of consortium arising from an altercation which occurred on October 18, 2019. Plaintiffs Michael and Kendra Slocum filed their Complaint against Defendants Celebrity Casinos, Inc., and American Curvet Investment, LLC on March 16, 2020.

Default was entered against American Curvet Investment LLC (“ACI”) on February 20, 2022.

On July 29, 2022, ACI filed the instant motion to set aside default judgment.

Moving Arguments 

ACI moves to set aside default on the grounds that Plaintiffs served a John Doe at its office while the office was closed due to the COVID-19 pandemic. ACI disputes whether service was proper and argues that it neglected to file a responsive pleading because of improper service and a change in personnel. ACI alleges it did not discover the lawsuit until April 2022.

Opposing Arguments

Plaintiffs argue that they properly served ACI with a copy of the summons and Complaint and that ACI cannot rebut the statutory presumption favoring the registered process server’s statements in the proof of service.

Reply Arguments

ACI argues that the presumption favoring proof of service may be rebutted by contrary facts. ACI then reiterates arguments from its motion.

 

 

Per Code of Civil Procedure, section 473, subdivision (b), a court may relieve a party or his counsel from a dismissal against him because of his “mistake, inadvertence, or excusable neglect.” The application must be made “no more than six months after entry of judgment, is in proper form, and is accompanied by a proposed answer or other pleading. (Id.) And when such relief is available, “there is a strong public policy in favor of granting relief and allowing the requesting party his or her day in court.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981-982, internal quotations omitted.)

Merely setting aside a default and default judgment absent a motion to quash service of summons does not resolve issues with jurisdiction. (Marriage of Smith (1982) 135 CA3d 543, 554–555.)

ACI seeks to set aside default on the grounds that its excusable neglect caused it to discover the lawsuit in April 2022, after default had already been entered.

ACI supports its motion with a declaration from Feiyu Wang, the ACI’s President, who testifies that ACI’s offices were closed due to the COVID-19 pandemic and only resumed operations in June 2021. (Wang Decl., ¶3.) ACI had major turnover in its staff and new staff members sorted through a significant number of letters and correspondence received during the shut-down period. (Id.) It was not until the end of April 2022 that ACI discovered the lawsuit. (Id.) ACI discovered that Plaintiffs left the Complaint on February 26, 2021 with an unknown male who was Caucasian and between 36-40 years of age with brown hair, hazel eyes, and who weighed between 201-220 pounds. (Id., ¶4.) ACI did not employ such a person and no other personnel other than security were present at the time Plaintiffs allegedly served the Complaint. (Id.) No security guard was present on February 26, 2021 at 2:50 p.m. (Id., ¶5.)

Plaintiffs argue that it is doubtful that ACI did not know about the lawsuit because Defendant Celebrity Casinos, which shares an address with ACI, has been actively litigating this case. However, Plaintiffs supply no evidence that ACI knew of the lawsuit. 

The parties also dispute whether service was proper. However, ACI makes this motion under Code Civ. Proc., section 473(b), not section 473.5, and does not move to quash service of summons. ACI’s evidence shows that it was unaware of the lawsuit because its offices were shut down and its staff neglected to discover the lawsuit until April 2022. The Court finds that ACI failed to file a responsive pleading due to excusable neglect. 

However, ACI failed to file a responsive pleading as required by Code Civ. Proc., section 473, subd. (b). Without this, the Court must deny the motion.