Judge: Joel L. Lofton, Case: 23AGCV00838, Date: 2024-01-22 Tentative Ruling

Case Number: 23AGCV00838    Hearing Date: January 22, 2024    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:      January 22, 2024                                             TRIAL DATE: No date set.

CASE:                         ZIX, INC., a California corporation, v. US LONGTON, INC., a California corporation; JI LI, an individual; ALL PERSONS UNKNOWN, claiming any legal or equitable right, title, estate, lien, or interest in the property described in the complaint adverse to Plaintiff’s title, or any cloud on Plaintiff’s title thereto; and DOES 1 through 50, inclusive.  

CASE NO.:                 23AHCV00838

MOTION TO SET ASIDE DEFAULT

MOVING PARTY:                Defendants Ji Li and US Longton, Inc. (“Defendants”)

RESPONDING PARTY:       Plaintiff Zix, Inc. (“Plaintiff”)

SERVICE:                              Filed January 3, 2024

OPPOSITION:                       Filed January 8, 2024

REPLY:                                   No reply filed.

RELIEF REQUESTED

             Defendants move to set aside default and default judgment.

BACKGROUND

            This case arises out of Plaintiff Zix, Inc.’s (“Plaintiff”) claim for quiet title for four properties located at 314 E. Mission Road, #A-D, San Gabriel, CA 91776, APN: 5368-019-046, 5368-019-047, 5368-019-048 and 5368-019-049 (“Subject Properties”). Plaintiff filed this complaint on April 13, 2023, alleging four causes of action for (1) quiet title, (2) fraud, (3) partition, and (4) declaratory relief.

TENTATIVE RULING

            Defendants’ motion to set aside default and default judgment are ordered CONTINUED.

LEGAL STANDARD

“Section 473(b) provides for both discretionary and mandatory relief. [Citation.]” (Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.)  The discretionary relief provisions of Code of Civil Procedure section 473, subd. (b) provide in relevant part: “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.” 

The mandatory relief provision provides that a court shall grant relief “whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc. section 473, subd. (b).)

DISCUSSION

            Defendants move to set aside the entry of default and default judgment. On June 27, 2023, default was entered against both Defendants. On November 15, 2023, a default judgment prove-up hearing was held. On December 4, 2023, this court entered judgment in favor of Plaintiff. Defendants filed their motions to set aside default and judgment on January 3, 2024.

            As a preliminary issue, Defendant’s reserved hearing date is improper. Code of Civil Procedure section 1005, subdivision (b), requires moving papers to be served at least 16 court  days before the hearing plus two calendar days for the service similar to electronic service. Defendants’ motions were served on January 2, 2024, and filed on January 3, 2024. Thus, Defendants’ motions should be filed, at the latest, by December 27, 2024. The current hearing date is procedurally defective.

            It is also unclear what basis Defendants seeking to set aside default. However, based on Defendants’ two paragraph declaration, it appears that Defendants argue that relief should be granted pursuant to Code of Civil Procedure section 473, subdivision (b) and (d).

Code of Civil Procedure section 473, subdivision (b), provides that application for relief  “shall be made within a reasonable time, in no case exceeding six months”. In Pulte Homes Corp. v. Williams Mechanical, Inc. (2016) 2 Cal.App.5th 267, 273, a motion for relief was filed within six months of entry of default judgment but more than six months after entry of default. The Court held that the “trial court therefore could not set aside the default under Code of Civil Procedure section 473. And because it could not set aside the default, it also could not set aside the default judgment under Code of Civil Procedure section 473, because that would be ‘an idle act.’ ” (Ibid.) Similarly here, the underlying default was June 27, 2023, a few days past the six-month deadline for Defendants to move for relief. Thus, Defendants’ motions are untimely.

            That leaves only the basis of void judgment pursuant to Code of Civil Procedure section 473, subdivision (d).

            “A party may move to set aside a void judgment under section 473, subdivision (d). ‘A default judgment is void if the trial court lacked jurisdiction over the parties.’ [Citation.] A default judgment entered against a defendant who was not served in the manner prescribed by statute is void. [Citation.] ‘Under section 473, subdivision (d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service.’ ” (First American Title Ins. Co. v. Banerjee (2022) 87 Cal.App.5th 37, 42.)

            “Section 415.20, subdivisions (a) and (b) authorize substitute service in lieu of personal delivery. ‘If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, ... a summons may be served by leaving a copy of the summons and complaint 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, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.’ (§ 415.20, subd. (b).)” (Kremerman v. White (2021) 71 Cal.App.5th 358, 371-72.)

            Plaintiff filed two proofs of service that stated that Defendants were served by substituted service at 2799 S. Native Avenue, Rowland Heights, California 91748 on May 5, 2023. The proofs of service state that the documents were left with a John Doe occupant in his 60s who refused to provide his name. The process server provides he previously attempted to serve Defendants at the location on May 2 and 3 of 2023. In support of his argument that service was improper, Plaintiff merely contends that he did not live at the Rowland Heights address because his ex-girlfriend’s mom lived there so he stayed at an alternative residence. (Ji Decl. ¶ 2.) In opposition, Plaintiff contends that Li did in fact reside at 2799 S. Native Avenue, evinced by the fact that Li owned the property located at 2799 S. Native Avenue and listed that address when attempting to refinance the loan for the Subject Properties. (Yang Decl. ¶¶ 8-9.)

            At the current juncture, because Defendants’ motions failed to comply with the requirements of Code of Civil Procedure section 1005, subdivision (b), the hearing on Plaintiff’s motions are ordered continued 30 days. Defendants are ordered to submit further declarations demonstrating why proof of service was improper.

CONCLUSION

Defendants’ motion to set aside default and default judgment are ordered CONTINUED to Feb 7, 2024 at 8:30a.m.

Moving Party to provide notice.

Dated:   January 22, 2024                                           ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court indicating their

intention to submit.  alhdeptx@lacourt.org