Judge Jon R. Takasugi, Case Number: 23STCV21600, Date: 2025-02-07 Tentative Ruling

Defendant Insuasty’s motion to set aside default is MOOT. Defendant Lopez’ motion to set aside default is GRANTED.

On 9/8/2023, Plaintiff Victor Jacinto, Lucero P. Hidalgo Galvan, Victor Manuel Jacinto, a minor by and through her guardian ad litem Lucero P. Hidalgo Galvan, and Jerson Jael Jacinto, a minor by and through her guardian ad litem Lucero P. Hidalgo Galvan (collectively, Plaintiffs), filed suit against Erika L. Lopez and Julio J. Insuasty (collectively, Defendants), alleging: (1) breach of implied warranty of habitability; (2) breach of statuary warranty of habitability; (3) breach of the covenant of quiet enjoyment; (4) negligence; (5) violation of Civil Code section 1942.4; (6) private nuisance; and (7) violation of tenant anti-harassment ordinance.

As for Defendant Insuasty, the Court could not locate anywhere in the Court record that showed that default had been entered. While Plaintiffs sought the entry of his default on at least two occasions, both requests were denied due to issues with documentation.

Notably, Defendant Insuasty’s motion does not identify a specific date on which the entry of default purportedly occurred, nor does he attach any exhibit which would indicate that default has been entered.

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.

As such, Defendant Lopez’ motion to set aside, filed 7/1/2024, is untimely. Still, “[a]fter six months from entry of default, a trial court may still vacate a default on equitable grounds even if statutory relief is unavailable.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.)

In order to avail oneself of this equitable relief, a party must make the following showing: “[f]irst, the defaulted party must demonstrate that it has a meritorious case. Secondly, the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Lastly, the moving party must demonstrate diligence in seeking to set aside the default once it had been discovered.” (Stiles v. Wallis (1983) 147 Cal.App.3d 1143, 1147.)

Here, Defendant’s motion was accompanied by a motion to quash service, and thus includes a responsive answer. Moreover, Defendant’s motion contends that service was improper, and thus Defendant has explained that she failed to present a defense because she did not believe she was properly served. Furthermore, despite the fact this case was filed 9/8/23, and Defendant Lopez’ default was entered on 12/22/23, Plaintiff has not perfected default judgment on her. Both defendants have filed responsive pleadings and are present to litigate this lawsuit. As such, the Court finds that Defendant Lopez qualifies for equitable relief and there is no prejudice to Plaintiff.

Based on the foregoing, the Court finds that the relief requested is moot as to Defendant Insuasty, and granted as to Defendant Lopez.

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. For more information, please contact the court clerk at (213) 633-0517.

On 6/25/2024, pro per Defendants moved to quash service of summons and Complaint.

Defendants argue that service was not properly effectuated because they were not personally served, and substitute service was not properly effectuated.[1]

As for Defendant Erika L. Lopez, Plaintiffs filed a Proof of Service on 10/18/2023, which reflected that Defendant Lopez was served via substitute service at 127 W 115th St, Los Angeles, CA 90061 on October 16, 2023 at 3:14 p.m.

If a copy of the summons and of the complaint cannot with reasonable diligence be personally served to the person to be served... a summons may be served by leaving a copy of the summons and of the complaint at such person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business or usual mailing address other than a United States post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served at the place where a copy of the summons and of the complaint were left. Service of a summons in this manner is deemed complete on the 10lh day after such mailing.

The provisions regarding service of summons should be liberally construed to effectuate service and uphold jurisdiction if defendant received actual notice; the question should be resolved from a practical standpoint. (Bein v. Brechtel-Jochim Group. Inc. (1992) 6 Cal.App.4th 1387, 1392.)

Under Evidence Code section 647, the return of a registered process server upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.

Plaintiffs’ process server Paulette Marie Sands attempted to serve the Summons and Complaint at Defendant’s given address, 127 W 115th St, Los Angeles, CA 90061, which also appears as her current residential address per an extensive background check. (Diaz Decl. ¶ 3-4).

Paulette Marie Sands attempted personal service three times. (Diaz Decl. ¶ 4) Ordinarily, two or three attempts at personal service satisfies the requirement for reasonable diligence, thus enabling a plaintiff to utilize substituted service. (Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1182; Bein, supra, 6 Cal.App.4th at pp. 1391-1392.) As a result, Plaintiffs were reasonably diligent in attempting personal service, and thereafter, could rely on substituted service.

In a non-code compliant “rebuttal” to Plaintiff’s opposition, Lopez argues that she did not reside at this address and argues Ms. Sands should be criminally charged for perjury. However, after review, the Court finds Lopez has not adequately rebutted the presumption of proper service.

As for Defendant Julio J. Insuasty, Plaintiffs’ first process server Doreen Mallyon attempted to serve the Summons and Complaint at Defendant’s given address, 4946 El Monte Avenue, Temple City, CA 91780, which also appears as his current residential address per an extensive background check. (Diaz Decl, ¶ 3; 7). Doreen Mallyon attempted personal service four times. (See Diaz Decl., Exhibit C). Defendant was then re-served on May 27, 2024 by registered California process server David Wayne who attempted personal service five times. (Diaz Decl, Exhibit D).

In a non-code compliant “rebuttal” to Plaintiff’s opposition, Insuasty advances similar arguments to Lopez. For the same reasons, the Court finds Lopez has not adequately rebutted the presumption of proper service.

Based on the foregoing, Defendants’ motions to quash service of summons are denied.

[1] Given that Defendant Lopez is currently in default, she has no standing to bring this motion. The Court’s analysis as to her motion is purely advisory, in anticipation of future motion practice should she successfully move to set aside default.