Judge John J. Kralik, Case Number: 20BBCV00725, Date: 2024-02-09 Tentative Ruling

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Superior Court of California

County of Los Angeles

Department B

Plaintiff Foothill Retirement Operator, LLC (“Plaintiff”) alleges that Defendant Anthony Crescenzi entered into a written contract with Plaintiff. Defendant Dean Crescenzi is alleged to be Anthony Crescenzi’s son and that he signed the contract as Anthony Crescenzi’s agent and as the “Authorized Representative.” Plaintiff alleges that Anthony Crescenzi has been a resident at Plaintiff’s residential care facility for the elderly. Plaintiff alleges that it is owed $27,750 for residency, care, and services provided to Anthony Crescenzi through September 30, 2020.

The complaint, filed October 20, 2020, alleges causes of action for: (1) breach of written contract; (2) common counts; and (3) quantum meruit.

On January 19, 2021, the default judgment of Anthony Crescenzi, individually and as Trustee under the unrecorded Living Trust of Anthony and Dorothy M. Crescenzi dated August 21, 1995, and Dean Crescenzi was entered in the amount of $28,606.60.

On October 31, 2023, Defendant Dean Crescenzi filed a motion to set aside the default and default judgment. (On December 7, 2023, Dean Crescenzi filed a notice of errata with the correct hearing date.)

“Extrinsic fraud usually arises when a party is denied a fair adversary hearing because he has been ‘deliberately kept in ignorance of the action or proceeding, or in some other way fraudulently prevented from presenting his claim or defense.” (Bae v. T.D. Service Co. of Arizona (2016) 245 Cal.App.4th 89, 97.) In other words, “[e]xtrinsic fraud only arises when one party has in some way fraudulently been prevented from presenting his or her claim or defense.” (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1300.)

“Extrinsic mistake” is broadly applied when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits. (Bae v. T.D. Service Company (2016) 245 Cal.App.4th 89, 97–98.) Where a default judgment has already been entered, the following three elements must be established to qualify for equitable relief on the basis of extrinsic mistake: (1) the defaulted party must demonstrate that it has a meritorious case; (2) that party must articulate a satisfactory excuse for not presenting a defense to the original action; and (3) that party must demonstrate diligence in seeking to set aside the default once discovered. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 982.)

Defendant Dean Crescenzi (hereinafter “Defendant”) moves to set aside the default and default judgment entered against him based on extrinsic fraud and mistake. He argues that he and Anthony Crescenzi were not properly served.

The proof of service of the summons and complaint on Defendant (filed November 20, 2020) states that he was served by substituted service at his home located at 22737 Stagg Street, West Wills, CA 91304 on November 20, 2020 at 11:58 a.m. by serving “JOHN DOE (REFUSED NAME) – TENANT” (age 41-45, weight 201-220 lbs., black hair, male, 5’7” to 6’ in height, brown eyes, and Latino). The documents were thereafter mailed. Service was effectuated by Jose A. Saca, a registered California process server.[1]

Defendant provides his declaration in support of the motion. He states that his father Anthony Crescenzi was diagnosed with dementia in 2016 and, upon noticing his father’s mental decline, he got a power of attorney for his father. (Def.’s Decl., ¶2.) He states that after his father injured his hip and was hospitalized in September 2019, his father stayed at a nursing care facility and was diagnosed with Alzheimer’s disease and dementia. (Id, ¶¶3-4.) On October 20, 2019, his father was admitted to Plaintiff’s Foothill Retirement Care Home. (Id., ¶4.) He states that he lived at 22727 Stagg Street in West Hills[2] from June 2017 to June 2023, where he lived with his wife Sophia Crescenzi and his daughter Kayla Crescenzi. (Id., ¶5.) He states that his son left for college around September 2019 and did not live with him in November 2020 at the time of service. (Id.) Defendant states that on November 20, 2020 at 11:58 a.m., he was not at his home, but was with his business associates Mark Leonard and Johnathan Bruce at Mr. Leonard’s house in Oak Park and that they left Mr. Leonard’s house for lunch at a restaurant, where they finished around 1 p.m. and went to Mr. Leonard’s office in Westlake Village, such that he was out from 8:30 a.m. to 3:00 p.m. (Id., ¶6.) He states that his wife and daughter were also not home at that time and they never had a tenant. (Id., ¶7.) Defendant states that his father was not receiving the proper care with Plaintiff and thus pulled him out on December 3, 2020, put him into a different facility, and his father passed on December 25, 2020. (Id., ¶¶8-10.) Defendant states that on May 2, 2023, he received a letter from Chase Bank that a court order had been entered to take money out his account with Chase. (Id., ¶11.) He then spoke with Plaintiff’s counsel Adam Salamoff and stated that he had not received anything regarding the lawsuit or Plaintiff’s bills. (Id., ¶12.) He states that in May and June 2023, his family moved to another city, which took up his time, and he retained counsel in late September. (Id., ¶13.) In his supplemental reply declaration, he states that he did not know about the lawsuit until May 2, 2023 when he received a letter from the bank, and he did not receive anything about the lawsuit prior to the letter. (Def.’s Suppl. Decl., ¶3.)

Sophia Crescenzi also provides her declaration stating that she lived at 22737 Stagg Street from June 2017 to June 2023 with her husband, daughter, and son (who had been away for college at that time). (S. Crescenzi Decl., ¶2.) She states that in November 2020, no Latino male was a member of the household, they have never rented their home to anyone, and no one was home at the time of service. (Id., ¶¶2-3.) She states that on November 19, 2020, she was not home but spent the day with her sister at her house in Malibu. (Id., ¶4.) She states that she also worked with her sister at her home on November 20, 2020. (Id.)

Mr. Bruce, Defendant’s business associate, states in his declaration that on November 20, 2020, he was at Mr. Leonard’s house in Oak Park with Defendant and Mr. Leonard to work on an idea for a podcast and they ate at a restaurant at around 11:00 a.m. to 1:00 p.m. (Bruce Decl., ¶2.) He states that they went back to Mr. Leonard’s office in Westlake Village, such that they were together from 8:30 a.m. to 3:00 p.m. (Id.)

First, Defendant argues that he has a meritorious case. “Ordinarily, a verified answer to a complaint’s allegations suffices to show merit.” (Rappleyea, supra, 8 Cal.4^th at 983 [finding the defense has merit upon defense counsel’s declaration under oath that he believed defendants had a very good and justiciable defense to plaintiff’s claim].) His counsel Shivali Kasbekar provides a copy of Defendant’s verified answer. (See Kabekar Decl., ¶3, Ex. A.)

Second, Defendant argues that he had a satisfactory excuse for not presenting his defense based on the lack of service made on Defendant. He also argues that service on Anthony Crescenzi, who was over 90 years old at the time of service and incapable of handling his own affairs or participating in lawsuit, did not amount to proper service. Further, as discussed above, Defendant states that no one was home at the time of service at his home and he did not have a Latino male at his property.

Third, Defendant argues that he acted with diligence because he learned about the lawsuit on May 2, 2023 when Chase informed him that money was being garnished from his account, he was moving to a new city from May to June 2023, and he retained counsel in September 2023 (who had trial until October 2023), such that this motion was filed as soon as possible on October 31, 2023.

In opposition, Plaintiff argues that it was aware of Anthony Crescenzi’s mental capacity at the time of service, such that Plaintiff sent a letter to Defendant on October 28, 2020 informing him about Plaintiff’s intent to serve Anthony Crescenzi with the summons and complaint and providing a copy of the complaint (naming both Anthony and Dean) to Dean Crescenzi. (Salamoff Decl., ¶2, Ex. A.) However, a letter detailing an “intent” to serve Defendant, even if it included a copy of the complaint, does not amount to proper service pursuant to the code.

Plaintiff argues that because it has submitted a proof of service showing that Dean Crescenzi was served by substituted service, the declarations submitted by Defendant are irrelevant and are not persuasive. At this time, the motion is essentially based upon the conflicting accounts of the declarants—the declaration of diligence by process server Jose A. Saca and the declarations submitted by Defendant in support of the motion.

Here, Defendant has technically satisfied the elements of showing extrinsic mistake and fraud that would warrant granting the motion. However, the Court is concerned about credibility issues. The Court inquires whether Defendant was on notice or in receipt of the summons and complaint that were mailed to him on November 20, 2020, as that matter is not addressed. The Court will order the parties to attend the hearing, and if Plaintiff wishes to bring the process server to provide testimony the Court will consider whether that would be helpful. Defendant Dean Crescenzi is also ordered to attend the hearing with his counsel so that the Court may make further inquiries as to his whereabouts on November 20, 2020.

The Court will rule on Defendant Dean Crescenzi’s motion to vacate the default and default judgment following the hearing on the matter. Defendant Dean Crescenzi and his counsel are ordered to attend the hearing in person or via video. The Court will inquire of Defendant Dean Crescenzi regarding whether he was in receipt of the summons and complaint by mail after it was served on November 20, 2020 and his whereabouts on the service date in question.

[1] The proof of service of the summons and complaint on Anthony Crescenzi (filed November 5, 2020) shows that he was served by personal service at 6720 St. Esteban St., Tujunga, CA 91042. Service was effectuated by Yarida Martinez, a registered California process server.

However, the motion is brought only by Dean Crescenzi. Anthony Crescenzi has since passed away.

[2] This appears to be a typographical error. Defendant states that he lives at 22727 Stagg Street, while service was effectuated at 22737 Stagg Street. However, based on Exhibit E’s Chase Letter, his address is listed as 22737 Stagg Street. Defendant does not raise any arguments that the location where he was served by substituted service was improper. As such, the Court will consider Defendant’s address to the 22737 Stagg Street. In the reply declaration, Defendant states that his address is 22737 Stagg Street.