Judge: Joel L. Lofton, Case: 20GDCV01099, Date: 2022-12-07 Tentative Ruling

Case Number: 20GDCV01099    Hearing Date: December 7, 2022    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:     December 7, 2022                               TRIAL DATE:  No date set.

CASE:                         WORLD OIL MARKETING COMPANY, INC. v. #1 AUTO SERVICE, INC., a California corporation; HUI LI, an individual; TOM VAN CHAU, an individual; NATHAN HERNANDEZ, an individual; and DOES 1 through 20, inclusive.  

CASE NO.:                 20GDCV01099

MOTION TO SET ASIDE DEFAULT

MOVING PARTY:              Defendant Hui Li

RESPONDING PARTY:      Plaintiff World Oil Marketing Company, Inc.

SERVICE:                              Filed November 4, 2022

OPPOSITION:                       Filed November 22, 2022

REPLY:                                   Filed November 29, 2022

RELIEF REQUESTED

            Defendant Hui Li moves to set aside the default and default judgment.

BACKGROUND

             This case arises out of Plaintiff World Oil Marketing Company, Inc.’s (“Plaintiff”) claim that Defendants #1 Auto Service, Inc., Hui Li (“Li”), Tom Van Chau, and Nathan Hernandez failed to perform under the lease or guarantee of the lease for property located at 3 East Duarte Road, Arcadia California. Plaintiff filed this complaint on December 16, 2020, alleging two causes of action for (1) breach of lease and (2) breach of lease guaranty.

TENTATIVE RULING

            Li’s motion to set aside the default and default judgment is granted.

REQUEST FOR JUDICIAL NOTICE

            Li’s requests for judicial notice is granted pursuant to Evidence Code section 452, subdivision (d).)

LEGAL STANDARD

            “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.” (Code Civ. Proc. section 473.5, subd. (a).)

DISCUSSION

            On August 16, 2021, Plaintiff filed a proof of substituted service of summons for Li at 8031 Orchid Drive, Corona, California, 92880. The proof of service provides that the documents were served on a Jane Doe who refused to provide her name. On January 11, 2022, Plaintiff filed a request for entry of default and judgment against each defendant in the present action. On January 19, 2022, this Court awarded judgment in Plaintiff’s favor. On January 27, 2022, Plaintiff sought to serve notice of the entry of judgment on Li at the Orchid Drive address.  On November 4, 2022, Li filed this present motion to set aside default and default judgment.

            The parties present separate representations of the facts surrounding Plaintiff’s attempts to serve Li. Li provides that she suffered an accident in 2016 and resided with her daughter for 2021 and 2022. (Li Decl. ¶¶ 2-3.) Li provides that her daughter resides on Cone Street in Rowland Heights. (Id. ¶ 3.) Li also provides that she was served in a separate case at the Cone Street address. (Id. ¶ 4.) Li provides that she had no actual notice of this case until her attorney for the separate action informed her there was a default judgment in the present case in October of 2022. (Id. ¶ 5.) Li also states that she never evaded service of process in any matter. (Id. ¶ 4.)

            In opposition, Plaintiff contends that Li has been attempting to avoid service. Plaintiff also provides that service on Defendant Nathan Hernandez at the Cone Street address and Defendant #1 Auto Service, Inc. should have altered Li to this action because Li s the CEO of #1 Auto Service, Inc.

            Li argues that the judgment is void on its face pursuant to Code of Civil Procedure section 473, subdivision (d). However, Li fails to establish how or why the judgment is facially void. Li’s arguments are more relevant to the issue of whether Li had actual notice of the case, as discussed below.

            Li also argues that the service of summons did not result in actual notice to her. In Rosenthal v. Garner (1983) 142 Cal.App.3d 891, 895, the Court rejected the respondent’s argument that constructive notice was sufficient to defeat a motion to set aside a default. The Court held “that the reference in Code of Civil Procedure section 473.5 to ‘actual notice’ means genuine knowledge of the party litigant and does not contemplate notice imputed to a principal from an attorney's actual notice.” (Ibid.) Here, Plaintiff’s argument is essentially that Li had constructive notice of the case. However, Plaintiff does not provide any evidence to contest Li’s claim that she never received actual notice of this case until her attorney informed her in October 2022.

            Li has represented that she has been residing at the Cone Street address and received no actual notice in the present case until October 2022. Further, because Plaintiff sought to serve Li solely at the Orchid Drive address and has not submitted evidence contesting Li’s claim that she received no actual notice, Li’s motion to set aside the default and default judgment is granted.

CONCLUSION

            Li’s motion to set aside the default and default judgment is granted.

Dated:   December 7, 2022                             ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court