Judge: Joel L. Lofton, Case: 23AHCV00843, Date: 2024-05-23 Tentative Ruling

Case Number: 23AHCV00843    Hearing Date: May 23, 2024    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:      May 23, 2034                          TRIAL DATE:  No date set.

CASE:                         GERALD GATES, an individual, v. JOSEPH FLORENTINO DUARTE, FLORENTINO DUARTE AND DOES 1 TO 25.

CASE NO.:                 23AHCV00843

MOTION TO SET ASIDE DEFAULT

MOVING PARTY:              Defendant Joseph Florentino Duarte

RESPONDING PARTY:     Plaintiff Gerald Gates

SERVICE:                             Filed April 11, 2024

OPPOSITION:                      Filed May 10, 2024

REPLY:                                 None as of May 21, 2024

RELIEF REQUESTED

            Defendant moves for an order granting relief from the default judgment filed in this court on November 21, 2023, and entered in this court on November 21, 2023, because he was erroneously served by publication on November 3, 2023.

BACKGROUND

            This action arises out of a motor vehicle accident which occurred on June 30, 2021. On April 14, 2023, Plaintiff GERALD GATES (“Plaintiff”) filed a Complaint for negligence against Defendants Joseph Florentino Duarte, Florentino Duarte (collectively, “Defendants”) and Does 1 through 25 alleging motor vehicle negligence and general negligence.

            On March 20, 2024, the Court entered default as to Joseph Florentino Duarte.

            On April 11, 2024, Defendant Joseph Florentino Duarte filed the instant motion.

            On May 10, 2024, Plaintiff filed his opposition.

            As of May 21, 2024, no reply has been filed.

TENTATIVE RULING

Defendant’s motion to set aside default is DENIED.

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

            Defendant argues that the motion to set aside default should be granted because he did not receive actual notice of the case since, he was improperly noticed by publication. Defendant provides his declaration stating that he has always resided at 622 East Shrode Ave, Duarte, CA 91010. (Duarte Decl. ¶¶ 4,8-9; Vallejo Decl. ¶ 12.) He further attests that he never received notice of the lawsuit or was not aware of any attempts to be served with the lawsuit any time in May of 2023.(Id. at ¶ 5.) Moreover, Defendant claims that he did not receive actual or formal notice of this lawsuit until March 29, 2024, when he was informed by his insurance company that there was a default filed against him. (Id. at ¶ 12.) In opposition, Plaintiff submits the declaration of his counsel, Byron M. Purcell who declares that eight prior attempts to personally serve Defendant at 622 East Shrode Ave, Duarte, CA 91010 were unsuccessful by two different process servers. (Purcell Decl. ¶¶ 9,13.) Although Defendant claims he did not receive actual notice, the eight separate service of process attempts at varying times shows that publication was proper. For instance, the first four service attempts took place on May 9, 14, 17, and 22, 2023 ranging from 7:21 pm, 8:32 am, 1:30 pm, and 7:45 pm. The second set of attempts took place on August 24, 25, 27, and 28, 2023, ranging from 7:50 pm, 8:25 pm, 8:46 am, and 6:52 pm. Process servers stated that there was no access to the front door because of unleashed dogs, locked gates, fenced yard, and no answer to calls. (Vallejo Decl. ¶¶ 7, 10; Exs. B-C.) Moreover, Mr. Purcell provides letters sent from December 5, 2023, to August 22, 2023, between Mercury Insurance and Plaintiff’s counsel which shows that a copy was sent to Defendant. (Purcell Decl. ¶ 17; Exs. H-I.) Therefore, the evidence suggests that is more likely than not that Defendant was evading service.

CONCLUSION

            Thus, Defendants’ motion to set aside default and default judgment is DENIED.

            Moving Party to give notice.

Dated:   August 23, 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