Judge: John C. Gastelum, Case: 22-01259212, Date: 2022-08-30 Tentative Ruling
Motion to Set Aside/Vacate Default
Tentative Ruling: Defendant Joseph Wilk (“Defendant”) moves for an order setting aside the default entered against him by Plaintiff Eric Brahms (“Plaintiff”) on May 19, 2022 on the grounds that the default was entered due to his inadvertence, surprise, mistake, and excusable neglect.
The court is empowered to relieve a party “upon any terms as may be just . . . from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473(b).) Application for an order for relief “shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Ibid.) The law strongly favors an exercise of discretion in favor of granting relief so that matters can be heard on their merits. (Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1139.)
Defendant’s Evidentiary Objections to Declaration of Stuart A. Katz
No. 1 – sustained, relevancy;
Nos. 2-4 – overruled.
The Court notes the Opposition was not properly served in that it was served by first class mail and not by personal delivery, facsimile, express mail, or other means reasonably calculated to ensure delivery no later than the next business day. (Code Civ. Proc., § 1005(c).) Because Defendant was able to file a substantive Reply in a timely manner, the Court will exercise its discretion to consider the improperly served Opposition.
The Court grants Plaintiff’s request for judicial notice of the Third-Party Claim of Exemption on Behalf of Non-Party Boostaddict.com LLC, in Case No. 30-2020-01136400. (Evid. Code, § 452(d).) The Court declines to take judicial notice of the remaining documents as not relevant to the issues raised herein. (State Compensation Ins. Fund v. ReadyLink Healthcare, Inc. (2020) 50 Cal.App.5th 422, 442-443.)
The Proof of Service of Summons on Defendant indicates he was served by substituted service on April 7, 2022 at 340 S. Coyote Lane, Anaheim, California 92808. (ROA 13.) Copies were mailed on April 8, 2022. (Ibid.) An attached Declaration of Diligence shows attempts were made on April 5 and 6 with no answer at the door. (Ibid.)
The address where service was made is Defendant’s father’s address. (Declaration of Joseph Wilk, ¶ 3.) Defendant does not reside there and was not present during the service. (Ibid.) Defendant does use the address as the mailing address for BoostAddict, LLC, of which he is a member. (Ibid.) It was Defendant’s understanding that his father refused to accept documents on his behalf and that he needed to be served personally. (Ibid.) When Defendant informed his counsel that no documents were given to him on the day his father was served, his counsel stated he had not been served. (Ibid.) Defendant’s father informed Defendant he had refused to accept papers on Defendant’s behalf and informed the process server that Defendant did not reside at that address. (Declaration of Alexander Wilk, ¶ 2.)
When Defendant’s counsel was informed that Defendant’s father had been served at his residence, she informed Defendant that she did not believe he had been served because he did not reside at that address. (Declaration of Catherine F. Lukehart, ¶ 4.) She did not know that the residence was used for mail by BoostAddict, LLC. (Ibid.) On May 26, 2022, counsel received an email with a copy of the Request for Entry of Default, which she did not see until May 27 because she was in the hospital. (Id., ¶ 5.) The same day, she submitted an Answer on behalf of Defendant for filing, not realizing that default had already been entered. (Ibid.)
Plaintiff opposes the Motion, arguing service on Defendant was properly made and Defendant has failed to show default was entered as a result of any mistake, inadvertence, surprise, or excusable neglect. In a separate action, Defendant, as President of BoostAddict.com LLC, averred that the address where he can be served with legal papers by mail is the Anaheim address where service was made here. (Declaration of Stuart A Katz, Ex. F.) The Statement of Information filed by BoostAddict.Com LLC with the California Secretary of State confirms the address at issue is that company’s business and mailing address. (Id., Ex. G.)
In lieu of personal service, a summons may be served on an individual by leaving a copy at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address, and by thereafter mailing a copy to the person to be served at the place where the summons and complaint were left. (Code Civ. Proc., § 415.20(b).)
Here, it is undisputed Defendant did not reside at the address where service was made. It therefore does not qualify as his dwelling house or usual place of abode. Further, though Plaintiff has shown that the address is the business and mailing address of a limited liability company of which Defendant is a member, this fact is irrelevant. Defendant was being served personally, not on behalf of the limited liability company, so whether the address was the company’s business or mailing address does not matter. What matters is whether the address is Defendant’s own usual place of business or usual mailing address, which is not clear. Thus, it remains uncertain whether the purported substituted service on Defendant was proper.
Moreover, the Court finds the default was entered against Defendant due to his mistake, inadvertence, surprise, and excusable neglect. Defendant believed he had to be personally served with the Summons and Complaint and his father had refused to accept service on his behalf. Accordingly, Defendant believed he had not yet been served and no answer by him was due. The Court finds Plaintiff will suffer no prejudice as a result of the granting of this Motion.
Given the foregoing, the Motion is GRANTED.
Defendant to give notice.