Department 30, Spring Street Courthouse

January 13, 2022

20STCV36767

Motion to Set Aside Request for Entry of Default filed by Defendant David E. Fermelia 

The motion is granted.

Defendant is ordered to file an answer or other responsive pleading within 20 days after the date of this order.

Trial is set for January 25, 2024 at 8:30 a.m. and the Final Status Conference is set for January 11, 2024 at 10:00 a.m.

Motion cutoff date, discovery cutoff date, expert exchange date and all other dates are to comport with a trial date of May 1, 2023.

To the extent that the parties wish to participate in mediation, they are ordered to do so prior to the FSC.

The parties should not anticipate any further continuances. This is a firm trial date and the parties should be prepared to proceed. 

This is an action for negligence and medical malpractice arising from a surgery Plaintiff received under Defendants’ care in September 2019. Plaintiff Djamileh Mahjoubi filed her Complaint against David E. Fermelia on September 25, 2020. 

On September 27, 2021, Plaintiff filed a First Amended Complaint naming Cedars Sinai Medical Center as a defendant in this action.

Cedars Sinai Medical Center was dismissed without prejudice on February 10, 2022.

The Court entered default against Fermelia on August 2, 2022.

Fermelia filed the instant motion to set aside default on December 8, 2022.

Moving Arguments

Defendant David Fermelia argues that default entered against him in August 2022 should be set aside because he never received notice of the Complaint. Alternatively, Fermelia requests that default be found void because it is procedurally defective. 

Opposing Arguments

Plaintiff argues that Fermelia deliberately avoided service and is now lying about never receiving the Complaint. Plaintiff also argues that Fermelia should have had notice of this action because his employer, Cedars Sinai, made many appearances in this matter.

Reply

Fermelia argues that he would not have had actual notice of this matter because Cedars Sinai knew of this matter. Fermelia also argues that he did not evade service or instruct his office staff to evade service on his behalf. 

The California Supreme Court has held that “failure to have served the summons and complaint is a defense to an action on a judgment.”  (Ibid. at 202, referring to Hill v. City Cab etc. Co. (1889) 79 Cal. 188, 190-191.)  “‘Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.’”  (AO Alfa-Bank v. Yakovlev (2018) 21¿Cal.App.5th 189, 202.)  “To establish personal jurisdiction, compliance with statutory procedures for service of process is essential.”  (Kremerman v. White (2021) 71¿Cal.App.5th 358, 371.)  Defendant’s knowledge of the action does not dispense with statutory requirements for service of summons.  (Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466.) 

 

Courts may set aside default or default judgment pursuant to Code of Civil Procedure, section¿473.5 for lack of actual notice. “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 of Civ. Proc., section 473.5.) Furthermore, the notice must 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.” 

Service of a summons may be accomplished by personal service, by substitute service, by mail with an acknowledgment of receipt, or by publication. (Code Civ. Proc., section 415.10, et seq.) “An individual may be served by substitute service only after a good faith effort at personal service has first been made: the burden is on the plaintiff to show that the summons and complaint ‘cannot with reasonable diligence be personally delivered’ to defendants. Two or three attempts to personally serve a defendant at a proper place ordinarily qualifies as ‘reasonable diligence.’” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389.) (Emphasis added.)

If the summons and complaint cannot be personally delivered with reasonable diligence, then a copy may be served at the person’s “dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box…who shall be informed of the contents thereof and by thereafter mailing a copy of the summons and complaint by first class mail, postage prepaid, to the person to be served…” (Code Civ. Proc., section 415.20, subd. (b).)    

Fermelia argues that default against him should be set aside because he never received actual notice of this lawsuit.

Proof of Personal Service filed February 8, 2022 states that Plaintiff’s process server left the Summons, First Amended Complaint, Notice of Case Assignment, and standing order at 8635 W 3rd St. STE 870W, Los Angeles, CA 90048. 

Fermelia’s testifies that he did not have any knowledge of Plaintiff’s lawsuit against him until November 18, 2022. (Fermelia Decl., ¶4.) Fermelia was not aware of any attempts to serve him with any legal papers at 8635 W 3rd Street, STE 870W, Los Angeles, CA, 90048 or any other address. (Id., ¶6.) The address is an office operated by his employer, Cedars Sinai Medical Group. (Id.) Staff at that office never communicated with Fermelia about the service attempts. (Id.) Fermelia’s declaration also states “at no time did I attempt to evade service or purposefully seek to avoid making an appearance in this matter.” (Id., ¶11.) As soon as he heard about the default against him, he sought counsel to make an appearance. (Id.)

Although Fermelia testifies that he had no notice of this action, Fermelia’s declaration is insufficient to show that his lack of notice was not due to inexcusable neglect. It is not clear whether 8635 W 3rd St., STE 870W, Los Angeles, CA, 90048 is Fermelia’s usual place of business or whether it is an unrelated office. If that office is where Fermelia’s usual place of business is, then Plaintiff may have properly served the Complaint via substituted service.

 

Nevertheless, the Court finds that default was void because there is no evidence that Plaintiff ever served a statement of damages on Fermelia before default was entered. In personal injury and wrongful death cases, default is void if the defendant was not served with the required statement of damages before default was entered. (Yu v Liberty Surplus Ins. Corp., 30 CA5th 1024, 1031.) Here, Plaintiff’s Proof of Service does not reflect that the statement was served on Fermelia. Therefore, default is void. The Court sets aside default.