Judge: John C. Gastelum, Case: 21-01179085, Date: 2023-08-15 Tentative Ruling
Motion to Set Aside/Vacate Default and Judgment
Tentative Ruling: Defendant, Joseph Moza, M.D. moves for an Order granting relief from the default and from the default judgment entered in this Court on February 28, 2023 pursuant to Code of Civil Procedure section 473(b) on the ground that the default judgment was entered as a result of mistake, inadvertence, surprise and/or excusable neglect, and alternatively, based on equitable factors. The Motion is DENIED.
Code of Civil Procedure section 473(b) states, 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.
(Code Civ. Proc. § 473(b), emphasis added.)
The party seeking relief bears the burden of proof in establishing a right to relief. (Hopkins & Carley v. Gens (2011) 200 Cal. App. 4th 1401, 1410.) “The moving party has a double burden: He must show a satisfactory excuse for his default, and he must show diligence in making the motion after discovery of the default. [Citation.]” (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1420, internal quotations omitted.) Whether the moving party has successfully carried this burden is a question entrusted to the discretion of the trial court and its ruling will not be disturbed in the absence of a demonstrated abuse of that discretion. (Hopkins & Carley v. Gens (2011) 200 Cal. App. 4th 1401, 1410.)
Initially, the motion is timely. The motion was filed on March 27, 2023, within six months of entry of default on October 12, 2022 (ROA 39), and Entry of Court Judgment on February 28, 2023 (Bhamre Decl.,¶ 11, ROA 52).
Defendant fails to meet his burden to show that the default and default judgment were entered as a result of mistake, inadvertence, excusable neglect or surprise.
While Defendant generally refers to all grounds, Defendant specifically contends there was excusable neglect for a busy medical provider to not read the local publication on a regular and routine basis to ascertain whether a lawsuit had been initiated against him, particularly since his address is publicly available on the Medical Board of California website and the location of his office in Newport Beach was readily found using a simple internet search, and that a reasonably prudent person in his circumstances would not have believed it necessary to regularly consult local publications.
Defendant also specifically contends there was surprise as Defendant complied with the requirement to provide a current street address to the Medical Board of California such that service of process could be effected on him without complications.
Defendant fails to support his arguments including the arguments that he complied with the requirement to provide a current street address to the Medical Board of California, and provided the Newport Beach address at the relevant time period, or that this Newport Beach address was publicly available during such time.
Defendant’s counsel attaches a copy of profile of Defendant from the Medical Board of California website which purports to show the address he has provided to the Medical Board, which is publicly available. (Warren Decl., ¶ 5, Ex. 3, ROA 73.) However, no Newport Beach address appears. Rather, the address which appears is: “PO Box 8071 Visalia, CA 93290-8071, Tulare County.” (Ex. 3 to Warren Decl., ROA 73) The printout also indicates the “CURRENT DATE/TIME” is March 24, 2023. (Ibid.) The salient address is the address for Defendant after and during the Complaint was filed on January 15, 2021 (ROA 2), if that address was different from the current address which it appears to be, but it appears undisputed that the address should have been the address in Newport Beach.
Defendant states he formerly resided in Needles, California from 2016 through 2020 and maintained a mailing address at “P.O. Box 533, Needles, CA 92363, until approximately the fall of 2020.” (Declaration of Joseph Moza, M.D., ¶ 4, ROA 71.) Defendant also provides that he has resided in Newport Beach since approximately September 2020 at 28 Ebb Tide Circle, and also maintained a business office in Newport Beach since approximately September, 2020. (Id., ¶¶ 8-9, ROA 71.) However, there is no evidence that any address in Newport Beach appeared on the Medical Board of California website, or that it was readily and publicly available.
Nor does Defendant show that service of summons and Complaint is properly made at a PO box address.
Defendant also contends he never received notice of Plaintiff’s Petition for Arbitration of the fee dispute at issue in this action, and was never personally served or aware of this lawsuit. (Moza Decl., ¶¶ 7, 8.)
However, Plaintiff provides that Notice of Client Right to Arbitrate was served on May 31, 2018, by mail to Defendant’s post office box in Needles, California, and email. (Bhamre Decl., ¶¶ 3, 4, Exs. A and B, ROA 77.) Plaintiff also provides that in or about July 2021, Plaintiff learned that Defendant had established an office in Newport Beach at 28 Ebb Tide Circle, Newport Beach, California; that this location also served as Defendant’s residence; that Plaintiff requested their attorney service to attempt service at the Newport Beach address and that the process server attempted to serve Defendant on 10 separate occasions, but was unable to serve Defendant; and that after being unable to serve Defendant, Plaintiff sought and obtained an Order for Publication of Summons, which was published in the Orange County Register for four weeks in July of 2022. (Id., ¶¶ 6-8, ROA 77.) Attached to the Bhamre Declaration is a Non Service Report by Registered California process server, Joe Lomeli, which indicates 10 attempts were made to effect service of process on Defendant at the Newport Beach address, five attempts in August 2021, and five attempts in December 2021, with one contact with the first attempt where a male occupant indicated Defendant “was not at home and it’s hard to know when he will be.” (Ex. C to Bhamre Decl., ROA 77.) Defendant does not address any of this evidence in reply.
Ultimately, it appears Defendant’s argument is that service of the summons and Complaint by publication was improperly made, or invalid, or that service of process should not have been made in that manner. However, publication is a valid option for service of process. (Code Civ. Proc. § 415.50). A reasonably prudent person under the same or similar circumstances, i.e., being aware of a fee dispute and receiving Notice of Client Right to Arbitrate prior to suit being filed, and 10 attempts at personal service of process at the Newport Beach address with the first attempt having contact with a male stating the Defendant was not at home, fail to check local publications for a possible lawsuit against him. Given these circumstances, surprise is also not shown, nor are mistake or inadvertence.
Last, Defendant contends the motion should be granted on equitable grounds, but no authorities are cited or discussed stating what the grounds for equitable relief are, and upon which ground Defendant relies. When legal argument with citation to authority is not furnished on a particular point, the court may treat the point as forfeited and move on without consideration. (Okasaki v. City of Elk Grove (2012) 203 Cal.App.4th 1043, 1045, fn. 1.) The Court treats this argument as waived.
Plaintiff to give notice.