Judge John J. Kralik, Case 22BBCV00099 2022-09-16 Tentative Ruling

Plaintiff Fond Land Preservation Foundation (“Plaintiff”) alleges it is a nonprofit public benefit corporation that has a specific purpose to acquire, preserve, and maintain one or more parks or open spaces in the Los Angeles or Ventura Counties for the use and enjoyment of the general public to be named in honor of Charles Fond and Rosemary Ann Fond. Plaintiff alleges that it owns 600 acres located in the Shadow Hills Community and land adjacent to the community. Plaintiff alleges that it has a number of easements for its benefit from Sunland Boulevard up Teazle Canyon Road for ingress and egress purposes.

Plaintiff alleges that Defendants Linda Sherdel, Edward Avakian, Richard and Mary Quacquarini, Ante Vukic, Raul and Martha Benitez, Jim Wrtenn and Nanci B. Roberts, Dennis and Alice Teague Brandt, Sharon and Norman N. Griffin, Edris Issaagholian and Setanyan Lusine, Tonya McCann and Daniel Sanowski Jr., Nicole and David A. Schwimmer, Pedro and Edith Leiva, and Eric and Nancy Insua are residents of the Shadow Hills Community.

Plaintiff alleges that when Linda Sherdel purchased her property in 2013, she was aware that Plaintiff owned property adjacent to hers, as well as the easements. However, Linda Sherdel allegedly prevented Plaintiff’s volunteers and personnel from being at Fond Park and claimed they were trespassing. Plaintiff alleges that it hired a surveyor and built a fence next to Linda Sherdel’s property, but she blocked and impeded the surveyor’s activities. The other resident Defendants also put up “No Trespassing” signs at the entrance of Teazle Canyon Road and installed a self-help security gate at the entrance of Teazle Canyon Road in order to deter anyone entering Fond Park.

The Complaint, filed February 14, 2022, alleges causes of action for: (1) quiet title; (2) trespass and intentional tort; (3) trespass; (4) private nuisance; (5) declaratory relief; (6) injunctive relief; and (7) violation of Fish & Game Code, § 1602.

On July 7, 2022, Plaintiff dismissed: (1) with prejudice all causes of action against Defendants Tonya McCann and Daniel Sanowski, Jr. only; (2) without prejudice all causes of action against Defendants Pedro Leiva and Edith Leiva only; (3) with prejudice all causes of action against Defendants Sharon Griffin and Norman N. Griffin only; and (4) without prejudice the 2^nd, 3^rd, and 7^th causes of action against Defendants Richard Quacquarini, Co-Trustee of the Quacquarini Family Trust dated June 14, 2004, Mary Quacquarini, Co-Trustee of the Quacquarini Family Trust dated June 14, 2004, Edward Avakian, Raul Benitez, Martha Benitez, Jim Wrenn, Nanci B. Roberts, Nicole Schwimmer, Co-Trustee of the David and Nicole Schwimmer Family Trust, and David A. Schwimmer, Co-Trustee of the David and Nicole Schwimmer Family Trust.

On August 19, 2022, Defendants Eric and Nancy Insua filed a cross-complaint against Plaintiff for: (1) prescriptive easement; (2) equitable easement; and (3) declaratory relief.

On June 10, 2022, Defendant Linda Sherdel filed a motion to vacate entry of the default.

Defendant Sherdel moves to vacate the entry of default dated April 20, 2022 and quash the summons on the complaint. She moves pursuant to CCP § 473(b), CCP § 473(d), the Court’s equitable powers, and CCP § 418.10(a)(1). Defendant provides a copy of her answer to the complaint as Exhibit 3 of the moving papers.

The proof of service of the summons and complaint (filed April 20, 2022) states that Sherdel was served at 9978 1/2 Sunland Blvd., Sunland, CA 91040 by personal service on February 20, 2022 at 11:05 a.m. Service was effectuated by J. Scott Bergman, a registered California process server.

The Court notes that the documents were not mailed after they were left on Defendant’s property, such that substituted service did not occur and substituted service is not at issue.

Under CCP § 473(d), “[t]he court may, .... on motion of either party after notice to the other party, set aside any void judgment or order.” (CCP § 473(d).) “California is a jurisdiction where the original service of process, which confers jurisdiction, must conform to statutory requirements or all that follows is void.” (Honda Motor Co. v. Superior Court (1992) 10 Cal.App.4th 1043, 1048 [emphasis added].) There is no time limit on when a void judgment can be challenged. (Deutsche Bank National Trust Co. v. Pyle (2017) 13 Cal.App.5th 513, 526 [citing Falahati v. Kondo (2005) 127 Cal.App.4th 823, 830; CCP § 473(d)].)

In support of the motion, Defendant submits her declaration. She states that she resides at and owns the property located at 9978 1/2 Sunland Blvd., Sunland, CA 91040. (Sherdel Decl., ¶2.) She states that in January or February 2022, she received a copy of a so-called settlement agreement from Plaintiff’s attorney, asking her to waive her rights if she wanted to avoid the costs of litigation. (Id., ¶3, Ex. 1.) She states that she was never personally served with the summons or complaint in this action, nor was anyone in her household personally served. (Id., ¶¶4, 7.) She states under oath that she found the summons and complaint in a planter next to her front porch on or around February 20, 2022, never had contact with a process server regarding the summons and complaint, and did not hire counsel until after receiving the summons and complaint on her porch due to her misunderstanding that the attorney representing other defendants was also representing her. (Id., ¶4.) Defendant states that she retained Cirlin Goldberg LLP on April 14, 2022 and did not have the opportunity to speak with her attorneys until April 22, 2022. (Id., ¶5.) She states that she learned about the default entered against her on April 21, 2022. (Id., ¶6.)

In opposition, Plaintiff submits the declaration of Mr. Bergman, the process server. Mr. Bergman states that on February 18, 2022, he went to Defendant’s property and left because he did not see anyone home. (Bergman Decl., ¶5.) He states he returned on February 19, 2022 and again no one appeared to be home. (Id., ¶6.) He states that on February 20, 2022, he returned for the third time and saw a vehicle approaching from the road below and he saw a Caucasian, female driver with brown hair and that appeared to be 50 years old. (Id., ¶7.) Mr. Bergman provides a copy of a photo of an actress named Linda Sherdel, and he confirmed that the person he saw that day was the person in the photograph. (Id., ¶8, Ex. A.) He states that the person in the vehicle appeared to be agitated as she exited her vehicle, asked him if he used her trashcan, and that he attempted to give her the summons and complaint. (Id., ¶9.) He states that the woman would not accept the documents and got back into her car and drove up the road and then drove back down the road. (Id., ¶10.) He states that after Defendant refused to accept the summons and complaint, he left the documents on her porch, such that service of Defendant occurred in her driveway at her residence. (Id., ¶11.)

The evidence provided by the parties are conflicting. Defendant states that she was not personally served with the documents, she found the summons and complaint in a planter, and she did not have any contact with a process server. On the other hand, Mr. Bergman states that he met Defendant at her residence, she refused to physically accept service of the documents after his attempts at handing them to her, and he left the documents in her planter after she drove away. Although Defendant states that she was not personally served with the documents but instead found the documents in a planter near her house, the fact that she did not actually accept the documents from Mr. Bergman does not automatically negate that personal service occurred.

However, at this time, the Court will find that personal service was not properly effectuated. While there is some conflict between the declarations submitted by the parties, Mr. Bergman’s declaration lacks any statement that when he attempted to “provide her with the Summons, Complaint and other service documents by hand,” he makes no statements in his declaration that he identified himself as a process server, explained the nature of the documents, or informed her that he was trying to serve her. (See In re Ball (1934) 2 Cal.App.2d 578, 579 [“We take it that when men are within easy speaking distance of each other and facts occur that would convince a reasonable man that personal service of a legal document is being attempted, service cannot be avoided by denying service and moving away without consenting to take the document in hand.”].) While these are not explicit requirements, Mr. Bergman did not hand the documents to Defendant personally, but instead left them in a planter near her house.

Further, “[b]ecause the law favors disposing of cases on their merits, ‘any doubts in applying section 473 must be resolved in favor of the party seeking relief from default [citations]. Therefore, a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits.’ ” (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 696; see also Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 315.) Lastly, the policy of the law strongly favors a hearing on the merits, which supports granting this motion. (Thompson v. Sutton (1942) 50 Cal.App.2d 272, 276.) Applying these policies, the Court finds that allowing the case to proceed on its merits is proper.

Thus, the motion is granted pursuant to CCP § 473(d). While the Court will set aside the default, the Court will not quash the summons. Principally, this is because the motion to quash was not brought in a timely manner. (See CCP § 418.10(a).) In addition, it would be inequitable to require re-service at this time when Defendant has already reviewed the documents and is prepared to respond.

Defendant argues that the default was entered on April 20, 2022, after she hired counsel. Defendant argues that she did not file a responsive pleading or expect a default to be filed against her based on the understanding that personal service had not been properly effectuated. Thus, Defendant argues that the default should be vacated based on her mistake, inadvertence, surprised, and excusable neglect.

The motion was filed on June 10, 2022, 2 months after default was entered. Thus, the motion was timely filed and within a reasonable timeframe from the time of default. Further, as discussed above, Defendant believed she had not been personally served and so believed the default was improper and therefore did not file a responsive pleading. The Court finds that the circumstances here are sufficient to grant the motion.

Lastly, Defendant moves to vacate the default based on the Court’s equitable powers. As the Court has already found a basis to grant the motion pursuant to CCP § 473, the Court need not discuss the equitable considerations for vacating the default.

In opposition, Plaintiff requests that the Court impose a $1,000 penalty against Defendant if relief is granted.

(c)(1) Whenever the court grants relief from a default, default judgment, or dismissal based on any of the provisions of this section, the court may do any of the following:

(A) Impose a penalty of no greater than one thousand dollars ($1,000) upon an offending attorney or party.

(B) Direct that an offending attorney pay an amount no greater than one thousand dollars ($1,000) to the State Bar Client Security Fund.

The Court declines to impose a penalty against Defendant for bringing this motion. The Court notes that this case is still in its infancy stage as the case was only filed on February 14, 2022. Further, the policy favors hearing the action on its merits. Finally, the conduct of Defendant and her counsel are not such that a penalty is warranted. It appears that final decisions regarding the representation of Defendant Sherdel with common counsel were not resolved until late March. Moreover, while Defense counsel did take a vacation before moving the Court for relief, this delay still left plenty of time within the six-month statutory period which is considered presumptively reasonable. Thus, Plaintiff’s request for the imposition of a penalty against Defendant is denied.

Nevertheless, as noted above, as an equitable condition, the Court will not quash service, and Defendant Sherdel is expected to file her response within 20 days of this order.

Defendant Linda Sherdel’s motion to vacate the entry of default is granted. Defendant is ordered to file a copy of her answer and her cross-complaint (if she intends to file cross-claims) within 20 days following the hearing on this matter.

[1] In opposition, Plaintiff argues that the proof of service for Defendant’s motion shows that Plaintiff was not served. A review of the proof of service shows that Plaintiff and its counsel were not served. However, it appears that there was no prejudice as Plaintiff was aware of the moving papers and filed a substantive response. This will not be a basis to deny the motion.

Superior Court of California

County of Los Angeles

Department B