Judge: Joseph Lipner, Case: 23STCV15020, Date: 2024-03-08 Tentative Ruling

Case Number: 23STCV15020    Hearing Date: March 8, 2024    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Plaintiff Moises Peres (“Plaintiff”) seeks default judgment against Defendant Elizabeth Perez (“Defendant”)

The Court does not enter a default judgment and further VACATES the entry of default.  Plaintiff has not properly served Defendant.  For service of the Defendant in Mexico, Plaintiff must utilize either the Hague Convention or the Inter-American Service Convention.

The Court sets an OSC re service of process for July 10, 2024 at 8:30 a.m. to determine the status of Plaintiff’s efforts to properly serve Defendant. 

Background

This is a property dispute over the residence of Plaintiff and his wife, Maria Perez (“Maria”) (the Court uses first names only to avoid confusion, and means no disrespect), at 9506 Deeble St., South Gate, California 90280 (the “Property”). The following facts are taken from the allegations in the Complaint except where otherwise noted.

            Plaintiff and Maria purchased the Property in 1976. On March 24, 1976, a deed was recorded, granting title to them as Joint Tenants.

            In 2003, Plaintiff had agreed to be the guarantor for his friend’s home, but his friend did not pay the mortgage, resulting in a requirement that Plaintiff pay the mortgage instead. Fearing that they would lose their home, Plaintiff and Maria transferred the Property to their daughter, Defendant Elizabeth Perez, by a quitclaim deed. Neither Plaintiff nor Maria received anything from Defendant in exchange for the Property. It was the intent of Plaintiff and Maria at the time of the transfer that the transfer be temporary. In 2023, Defendant acknowledged to her sister and Plaintiff’s other daughter, Iris Perez, that the transfer was intended to be temporary, but stated that she had changed her mind. (Iris Perez Decl. ¶ 4.)

            Defendant never lived at the Property following the transfer. A few months after the transfer, Defendant moved to Mexico and has not returned to the United States since 2003. Plaintiff and Maria continued to live at the Property and continued to pay the taxes, utilities, and maintenance for the Property.

            Plaintiff filed this action on June 28, 2023, raising claims for (1) quiet title; (2) slander of title; (3) declaratory relief; and (4) resulting trust.

            Default was entered against Defendant on August 18, 2023.

            On October 31, 2023, Maria transferred her interest in the Property to Plaintiff through an interspousal transfer. (First Moises Perez Decl. ¶ 13, Ex. E.)

            On January 23, 2024, Plaintiff applied for default judgment against Defendant.

Legal Standard

CCP § 585 permits entry of a judgment after a Defendant has failed to timely answer after being properly served.  A party seeking judgment on the default by the Court must file a Form CIV-100 Request for Court Judgment, and:

(1) Proof of service of the complaint and summons;

(2) A dismissal of all parties against whom judgment is not sought (including Doe defendants) or an application for separate judgment under CCP § 579, supported by a showing of grounds for each judgment (CRC 3.1800(a)(7));

(3) A declaration of non-military status as to the defendant (typically included in Form CIV-100) (CRC 3.1800(a)(5));

(4) A brief summary of the case (CRC 3.1800(a)(1));

(5) Admissible evidence supporting a prima facie case for the damages or other relief requested (Johnson v. Stanhiser (1999) 72 Cal.App.4th 357, 361-362);

(6) Interest computations as necessary (CRC 3.1800(a)(3));

(7) A memorandum of costs and disbursements (typically included in Form CIV-100 (CRC 3.1800(a)(4));

(8) A request for attorney’s fees if allowed by statute or by the agreement of the parties (CRC 3.1800(a)(9)), accompanied by a declaration stating that the fees were calculated in accordance with the fee schedule as per Local Rule 3.214.  Where a request for attorney fees is based on a contractual provision the specific provision must be cited; (Local Rule 3.207); and

(9) A proposed form of judgment (CRC 3.1800(a)(6));

(10) Where an application for default judgment is based upon a written obligation to pay money, the original written agreement should be submitted for cancellation (CRC 3.1806). A trial court may exercise its discretion to accept a copy where the original document was lost or destroyed by ordering the clerk to cancel the copy instead (Kahn v. Lasorda's Dugout, Inc. (2003) 109 Cal.App.4th 1118, 1124);

(11) Where the plaintiff seeks damages for personal injury or wrongful death, they must serve a statement of damages on the defendant in the same manner as a summons (Code Civ. Proc. § 425.11, subd. (c), (d)).

(California Rules of Court rule 3.1800.)

Pursuant to Code Civ. Proc., § 1033.5(a)(1), items are allowable as costs under Section 1032 if they are “filing, motion, and jury fees.”

A party who defaults only admits facts well pleaded in the complaint or cross-complaint.  (Molen v. Friedman (1998) 64 Cal.App.4th 1149, 1153-1154.)  Thus, the complaint must state a claim for the requested relief.

Discussion

Service of the Complaint and Summons

            Service was not proper. According to the proof of service, Defendant was personally served on July 18, 2023 at A Las Montañas 120, Prados Vallarta, 45120, Zapopan, Jalisco, Mexico.

            “The Hague Service Convention applies to service on a resident of Mexico of a civil complaint filed within the United States[.]” (In re D.R. (2019) 39 Cal.App.5th 583, 593; Code Civ. Proc., § 413.10, subd. (c); see also 20 U.S.T. 361, Art.1 et seq.)

            “The Hague Convention provides specific procedures to accomplish service of process. Authorized modes of service are service through a central authority in each country; service through diplomatic channels; and service by any method permitted by the internal law of the country where the service is made.” (Honda Motor Co. v. Superior Court (1992) 10 Cal.App.4th 1043, 1045 [internal citations omitted].) The Inter-American Service Convention also provides an alternate means for service. (Kreimerman v. Casa Veerkamp, S.A. de C.V. (5th Cir. 1994) 22 F.3d 634, 642.)

            Here, Plaintiff appears to have executed personal service by normal means under U.S. law. However, it does not appear that Plaintiff has executed proper service under the Hague Convention or, alternatively, used the channels provided for in the Inter-American Service Convention. Thus, the entry of default in this case was improper. The Court is therefore unable to grant default judgment, and must vacate the default.

Lack of CIV-100

The Court further notes that Plaintiff has not filed a CIV-100 form seeking default judgment as required. Plaintiff submitted a CIV-100 to obtain entry of default, but must also file a CIV-100 seeking a court judgment and fill out the relevant portions of the form.

Dismissal of Other Parties

The Doe defendants have not been dismissed as required.

Non-Military Status

Carina Ochoa avers to the non-military status of Defendant.

Summary of the Case

Plaintiff provides a brief summary of the case in his Application for Default Judgment By Court and Prove-Up Brief.

Evidence of Damages

Plaintiff does not seek damages or interest.

Memorandum of Costs and Disbursements

Plaintiff does not seek costs.

Attorney’s Fees

            Plaintiff does not seek attorney’s fees.

Proposed Form of Judgment

            Plaintiff has not submitted a proposed form of judgment as required.