Judge Katherine Chilton, Case 19STLC06644 2022-09-15 Tentative Ruling

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On July 17, 2019, Plaintiff Armando Poeta (“Plaintiff”), in propria persona, filed an action against Defendants Andrea J. Kristy dba South Bay Handyman Services (“South Bay”), Andrea J. Kristy, an individual (“Kristy”), and John W. Yeater (“Yeater”), (collectively “Defendants”) for 1) breach of contract, 2) fraud and intentional misrepresentation, 3) violation of State Contractors’ License Laws, and 4) negligent infliction of emotional distress. The action arose out of an alleged contract between Plaintiff, homeowner, and Defendant South Bay Handyman Services, owned by Defendant Kristy, for electrical work to be completed by Defendant Yeater at Plaintiff’s home. (See Compl.)

On December 31, 2019, Plaintiff filed an Application to serve Defendants by Publication. The Application contains a Declaration of Due Diligence from registered process server Thomas Maxim showing several attempts to serve Defendants. (12-31-19 Application pp. 2-3.) The Declaration also notes that the Complaint and other documents were left with Defendant Yeater’s mother who “stated she would give documents to her son.” (Ibid.) The Court granted Plaintiff’s Applications on January 29, 2020, and on March 13, 2020, Plaintiff filed Proof of Service by Publication. (1-29-20 Orders; 3-13-20 Proof of Publication.)

On May 3, 2021, at the request of Plaintiff, the Court entered default against Defendants South Bay, Kristy, and Yeater. (5-3-21 Request.) Subsequently, on May 12, 2021, Default Judgment was entered against all Defendants for $24,080.32. (5-12-21 Judgment by Default.)

On December 6, 2021, Defendant Kristy, in propria persona, filed a Motion to Set Aside/Vacate Default and/or Default Judgment. On April 25, 2022, the Court granted Defendant Kristy’s Motion and vacated default and default judgment entered against Defendant Kristy and deemed Defendant Kristy’s proposed answer filed. (4-25-22 Minute Order.)

On July 19, 2022, Defendant Yeater filed the instant Motion to Vacate Default Judgment (the “Motion”). On September 1, 2022, Plaintiff filed an Opposition to Defendant’s Motion and on September 6, 2022, Defendant Yeater filed a Reply to Plaintiff’s Opposition.

Courts may set aside a default or default judgment due to lack of actual notice. Code of Civil Procedure § 473.5 states:

“(a) When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.

(b) A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.

(c) Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.”

Additionally, “[a] summons is the process by which a court acquires personal jurisdiction over a defendant in a civil action. The form of a summons is prescribed by law, and this form must be substantially observed. [Citation.] Service of a substantially defective summons does not confer jurisdiction over a party [citation] and will not support a default judgment. [Citation.]” (MJS Enterprises, Inc. v. Superior Court (1984) 153 Cal.App.3d 555, 557.) “Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.’ [Citation.]” (Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 858.) The trial court may set aside any void judgment or order at any time. (Code Civ. Proc., § 473(d).)

Relief from default judgment is also available pursuant to Code of Civil Procedure § 473(b). Discretionary relief is available under the statute as “the court may, upon any terms as may be just, relieve a party or his or her legal representative from judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. (Code of Civ. Proc. § 473(b).) Alternatively, mandatory relief is available when “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.” (Ibid.) Under this statute, an application for discretionary or mandatory relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought. (Code Civ. Proc., § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

Defendant seeks to set aside default and default judgment on the basis that “Service of Summons did not result in actual notice (CCP § 473.5). (Mot. pp. 1-2.) Defendant argues that he “first became aware of this lawsuit while visiting his mother on Thanksgiving in year 2020” and, thus, missed “the opportunity to participate and defend against Plaintiff’s allegations.” (Mot. p. 6; Yeater Decl. ¶¶ 1-2.) Defendant also states that he was not avoiding service and could not address the lawsuit because he was going through a challenging time in his life due to having a baby and being homeless. (Mot. p. 6; Yeater Decl. ¶ 3.) Furthermore, Defendant states that he attended hearings of Co-Defendant Kristy’s Motion to Vacate Default Judgment, assuming that these hearings were “relevant to the entire case and included Defendant Yeater as well.” (Mot p. 6.) Defendant has attached a copy of a “Preliminary Answer” to the Complaint. (Yeater Decl. ¶ 4, Ex. A.) Defendant seeks trial on the merits and an opportunity to fight against claims he alleges are “dishonestly fabricated by the Plaintiff.” (Mot. p. 7.)

Plaintiff has filed a late Opposition to the Motion; however, given that Defendant Yeater has submitted a Reply to the Opposition, the Court, in its discretion, considers the arguments in Plaintiff’s Opposition. Plaintiff argues that Defendant has not provided any evidence to demonstrate that he did not receive actual notice of the Complaint and instead, “admits in his Motion and accompanying declaration that he did have notice of the Complaint several months before default and default judgment were entered in this case.” (Oppos. p. 1.) Plaintiff states on August 17, 2019, a registered process server served Defendant Yeater through substituted service by leaving the Complaint and other documents with Defendant Yeater’s mother. (Mot. p. 3; Poeta Decl. ¶¶ 2-3, Ex. A.) Plaintiff also served Defendant Yeater by Publication on March 13, 2020. (Poeta Decl. ¶ 5; Ex. C.) Defendant Yeater admits that he learned about the lawsuit on Thanksgiving Day in 2020 and default and default judgment were entered against him on May 3, 2021, and May 12, 2021, respectively. (Mot. p. 3.) Defendant “made no effort between November 26, 2020[2] (Thanksgiving Day), and May 3, 2021, to contact Plaintiff or his counsel, or make any appearance in the case while the lawsuit remained pending.” (Ibid.; Poeta Decl. ¶ 6.) Defendant also did not demonstrate any other viable grounds for relief from default or default judgment, such as mistake, inadvertence, surprise, or inexcusable neglect. (Mot. pp. 7-8.) The circumstances in Defendant’s life are not sufficient reasons to “explain why, for five months, after learning of the lawsuit pending against him, he simply failed to do anything.” (Ibid. at pp. 2, 5-6.) Finally, Plaintiff argues that forcing him to “start over solely due to Defendant’s incompetence and inexcusable delay would be grossly prejudicial.” (Ibid. at p. 8.)

In his Reply, Defendant argues that Defendant Kristy’s Motion to Vacate Default and/or Default Judgment was granted “on the basis that the judge felt our defense has merit.” (Reply p. 1.) Defendant Yeater goes on to make several arguments regarding substantive matters in the case. (See Reply.) Regarding the instant Motion, Defendant Yeater states the following:

I will not insult the court with excuses, instead I ask for consideration in the fact that people aren’t perfect, and life’s challenges effect people in different ways. I would have liked to hire an attorney and fight the case, but that’s not always possible. With the pregnancy and birth of my son, it simply was not an option and I apologize for not responding sooner. The complexity of the legal system is intimidating and difficult to navigate for a person like myself. Because the case is restarting anyway, there is no additional time delays or cost to the Plaintiff, allowing me to participate.

As a preliminary matter, the Court notes that the Notice of Motion indicates that the Motion will be heard on August 16, 2022. (Mot. p. 1.) There is no indication that Plaintiff was informed that the hearing was continued to September 15, 2022. Furthermore, Defendant Yeater has not provided Proof of Service that his Reply to Plaintiff’s Opposition was served on Plaintiff.

Yeater’s Motion is based only on Code of Civil Procedure § 473.5, as he seeks to set aside the default for lack of actual notice. Thus, the Court only analyzes whether he has met the requirements of § 473.5.

First, Defendant Yeater argues that he was not served with the Complaint and other documents and was not aware of the lawsuit until Thanksgiving of year 2020. (Mot. p. 6; Yeater Decl. ¶¶ 1-2.) Plaintiff has filed Proof of Service demonstrating that a registered process server served Defendant by substituted service by leaving the documents with Defendant’s mother and by also by publication. (12-31-19 Application for Publication for John; 3-13-20 Proof of Publication.) “Evidence Code section 647 provides that a registered process server’s declaration of service establishes a presumption affecting the burden of producing evidence of the facts stated in the declaration. [Citation.]” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; Evid. Code § 647.) Here, Plaintiff has established this presumption. However, Defendant has now provided any proof to overcome this presumption or to show that he was not present in California when Plaintiff served him by publication in the Los Angeles Daily Journal.

Second, even if Defendant Yeater’s contention that he was not served until Thanksgiving of year 2020 is true, he learned about the lawsuit several months prior to the date default and default judgment were entered, May 3 and May 12, 2021, respectively. (5-3-21 Request for Entry of Default; 5-12-21 Judgment by Default.) Code of Civil Procedure § 473.5(a) states that “[t]he notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.” Here, Defendant learned about the Complaint prior to the entry of default and default judgment and did not file any responsive pleadings, thus, Plaintiff was entitled to request default and default judgment. (California Rules of Court, Rule 3.110(g) (“If a responsive pleading is not served within the time limits specified in this rule and no extension of time has been granted, the plaintiff must file a request for entry of default within 10 days after the time for service has elapsed.”)) Defendant states that he attended hearings of Co-Defendant Kristy’s Motion to Vacate Default Judgment, assuming that these hearings were “relevant to the entire case and included Defendant Yeater as well.” (Mot p. 6.) However, there is no indication that Defendant Kristy is licensed to practice law and may represent the interests of Defendant Yeater. Since the passage of the State Bar Act in 1927, persons may represent their own interests in legal proceedings, but may not represent the interests of another unless they are active members of the State Bar. [Citation.]” (Hansen v. Hansen (2003) 114 Cal.App.4th 618, 621.)

Finally, Defendant states that his failure to act on the lawsuit was due to challenging circumstances in his life. (Mot. p. 6; Yeater Decl. ¶ 3.) However, Defendant’s Motion is brought solely on the basis that he was not properly served, thus, the Court may not consider these circumstances, unless Defendant argues that the basis of his failure to act is “mistake, inadvertence, surprise, or excusable neglect.” (Code of Civil Procedure § 473.) Even then, the Court may not find Defendant Yeater’s arguments sufficient to meet the requirements of § 473 to vacate default and default judgment.

The Court also notes that Defendant Kristy’s Motion to Vacate Default and/or Default Judgment was not granted “on the basis that the judge felt [her] defense has merit,” as Defendant states in his Reply. (Reply p. 1.) In granting Defendant Kristy’s Motion, the Court found that “Defendant Kristy has shown that she entitled to relief under Section 473.5” and did not analyze the underlying merits of the case. (4-25-22 Minute Order, p. 5.)

For the foregoing reasons, Defendant John W. Yeater’s Motion to Vacate Default Judgment is DENIED.

[1] Proof of Service, filed on August 2, 2022, demonstrates that documents were mailed to Plaintiff’s attorney at 1424 Carson Street, Ste 500, Torrance, CA 90503. The correct address for Plaintiff’s attorney (prior to the Substitution of Attorney on August 24, 2022) was 3424 Carson Street, Suite 500, Torrance CA 90503. However, on September 1, 2022, Plaintiff filed an Opposition to the Motion, indicating that he has had an opportunity to review the Motion and file an Opposition.

[2] Plaintiff requests that the Court take judicial notice that the date of Thanksgiving Day 2020 fell on November 26, 2020. The Court grants Plaintiff’s request and takes judicial notice of this date.