Judge: Katherine Chilton, Case: 19STLC06821, Date: 2022-10-12 Tentative Ruling

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Case Number: 19STLC06821     Hearing Date: October 12, 2022    Dept: 25

PROCEEDINGS:      MOTION TO SET ASIDE/VACATE DEFAULT AND DEFAULT JUDGMENT

MOVING PARTY:   Defendants Dennis Waters Jr. and Dennis V. Water

RESP. PARTY:         Plaintiff Interinsurance Exchange of the Auto Club

MOTION TO SET ASIDE/VACATE DEFAULT AND DEFAULT JUDGMENT

(CCP § 473(b), 473(d), 473.5, 418.10.)

TENTATIVE RULING:

            The Motion to Set Aside/Vacate Default and Default Judgment filed by Defendants Dennis Waters Jr. and Dennis V. Waters is DENIED.

SERVICE: 

[   ] Proof of Service Timely Filed (CRC, rule 3.1300)                 YES

[   ] Correct Address (CCP §§ 1013, 1013a)                                                 NO

[   ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     YES

OPPOSITION:          Filed on October 4, 2022.                                    [X] Late                       [   ] None

REPLY:                     None filed as of October 10, 2022                      [   ] Late                      [X] None

ANALYSIS:

I.                Background

On July 22, 2019, Plaintiff Interinsurance Exchange of the Auto Club (“Plaintiff”) filed a complaint against Defendants Dennis V. Waters (“Waters”) and Dennis Waters Jr. (“Waters Jr.”), (collectively “Defendants”) for subrogation arising out of an alleged automobile accident that took place on October 5, 2018.

No responsive pleadings were filed, so on October 29, 2019, default was entered against Defendants.  (10-29-19 Request for Entry of Default/Judgment.)  Subsequently, on March 1, 2021, Judgment was entered for Plaintiff and against Defendants.  (3-1-21 Judgment.)  Plaintiff submitted Proof of Service showing that Defendants were served with the Judgment by mail on April 13, 2021.

On August 20, 2021, Plaintiff filed a Certificate of Facts Re: Unsatisfied Judgment.  On January 18, 2022, Plaintiff filed a Writ of Execution.

On August 9, 2022, Defendants, in propria persona, filed the instant Motion to Set Aside/Vacate Default and Default Judgment (“Motion”).  On September 28, 2022, the Court found that the hearing on the Motion was not properly scheduled and scheduled the hearing for October 12, 2022.  (9-28-22 Minute Order.)  The Order was served on Plaintiff and Defendants.  (9-28-22 Certificate of Mailing.)

On October 4, 2022, Plaintiff filed a late Opposition to the Motion (“Opposition”).  No reply has been filed.

On October 7, 2022, Defendants filed Notice of Limited Scope Representation by Attorney Katherine R. Cohan at the October 12, 2022, hearing on the Motion.

II.              Legal Standard & Discussion

A.    Motion to Set Aside Default and Default Judgment

Defendants seeks to set aside default and default judgment based on inadvertence, surprise, mistake, or excusable neglect (Code of Civil Procedure § 473(b)), lack of actual notice (§ 473.5), void judgment (§ 473(d)), and lack of actual notice in time to defend action by debt buyer (Civil Code § 1788.61).  (Mot. pp. 1-2.)  Defendants also move to quash service of summons for lack of jurisdiction (Code of Civil Procedure § 418.10).  (Ibid. at p. 3.)  Finally, they state that the damages requested in the Complaint were already paid in the small claims case #19AVSC00437.  (Ibid. at pp. 2, 8.)

On September 11, 2019, Plaintiff filed Proof of Personal Service, indicating that Defendant Waters was personally served at 3004 West Avenue M2, Lancaster, CA 93536, on August 17, 2019, at 5:11 p.m. by a registered California process server.  (9-11-19 Proof of Service: Waters.)  On the same day, Defendant Waters Jr. was personally served at 3004 West Avenue M2, Lancaster, CA 93536, at 5:11 p.m. by a registered California process server.  (9-11-19 Proof of Service: Waters Jr.) 

In their joint Declaration, Defendants state that service allegedly took place on August 20, 2019.  (Waters and Waters Jr. Decl. ¶ 3.)  The Court notes that the Proofs of Service indicate that Defendants were served on August 17, not August 20.  (9-11-19 Proof of Service: Waters; 9-11-19 Proof of Service: Waters Jr.)

Furthermore, Defendants state that no physical description was provided for either Defendant in the Proofs of Service.  (Waters and Waters Jr. Decl. ¶¶ 4-5.)  Both Defendants deny having been served with the Summons and Complaint.  (Ibid. at ¶ 5.)  The Declaration states that “I first learned about this lawsuit on or around July 6, 2022” by receiving a letter about the case; however, given that the Declaration was submitted on behalf of both Defendants, it is not clear which Defendant “I” refers to.  (Ibid. at ¶ 7.)  The letter referenced is an attempt to collect on the debt and it was mailed to 3004 West Avenue M2, Lancaster, CA 93536.  (Mot. p. 15.)

Defendants argue that they were not evading service and their failure to respond was the result of “inadvertence, surprise, mistake, or excusable neglect or lack of notice” as they were not served.  (Ibid. at ¶ 9.)  Finally, they state that the claim was already paid in full.  (Ibid. at ¶ 11.)

Defendants have filed a Proposed Answer.  (Ibid. at ¶ 10; Ex. A.)

On October 4, 2022, Plaintiff filed a late Opposition to the Motion; however, Counsel states that he was not served with the moving papers and learned about the Motion because of the Court’s September 28, 2022, Order.  (Oppos. p. 3; Horn Decl. ¶¶ 2-4.)

Plaintiff argues that the Motion is defective for the following reasons.  First, no good cause has been shown to set aside the default and default judgment pursuant to § 473(d).  (Ibid. at pp. 3, 6-7.)  Second, Defendants have not presented any facts or evidence to support their argument that judgment was entered due to their mistake, surprise, inadvertence, or excusable neglect, pursuant to § 473(b).  (Ibid.)  Third, Defendants did not present any fact or evidence showing that they did not have actual notice of the Judgment or subsequent papers that were served regarding the Judgment.  (Ibid.)  Defendants were served with the Summons and Complaint, subsequent entry of default, and default judgment at their home address.  (Ibid. at pp. 3-6; Horn Decl. ¶¶ 5-6.)  None of the documents that were served by mail were returned by the U.S. Postal Service.  (Ibid. at p. 4.)  In September 2021, Defendant Waters Jr. was served with Notice of Lien and Defendant Waters was served with Order of Suspension of Driver’s License by the California Department to Motor Vehicles.  (Ibid. at pp. 5-6, Horn Decl. ¶ 7.)  On February 1, 2022, Defendant Waters was served with an Earning Withholding Order.  (Ibid. at p. 6.)

Plaintiff also states that its Complaint for Property Damages has not been paid by Defendants.  (Ibid. at p. 7.)  The award granted in the Small Claims Case #19AVSC00437 was for the Insured’s lost wages that resulted from the accident.  (Ibid. at p. 7, Horn Decl. ¶ 9.)

The Court notes that it cannot consider the exhibits attached to Plaintiff’s Opposition as they are not authenticated as true and correct copies in Counsel’s declaration.  (Evid. Code § 1400, et seq.)

Finally, Plaintiff states that Civil Code § 1788.61 does not apply as the judgment debt was not purchased.  (Ibid. at p. 7.)

B.    Code of Civil Procedure § 473(b)

Pursuant to Code of Civil Procedure §473(b), both discretionary and mandatory relief is available to parties from a judgment, dismissal, order, or other proceeding.  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.)

“‘[W]hen relief under section 473¿is¿available, there is a strong¿public¿policy¿in¿favor¿of granting relief and allowing the requesting party his or her day in court…[Citation.]” (Rappleyea v. Campbell¿(1994) 8 Cal. 4th 975, 981-82.)

C.    Code of Civil Procedure § 473(d)

Pursuant to Code of Code of Civil Procedure §473(d), “[t]he court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”

D.    Code of Civil Procedure § 473.5

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.”

E.    Code of Civil Procedure § 418.10

“‘Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.’ [Citation.]”  (AO Alfa-Bank v. Yakovlev (2018) 21 Cal.App.5th 189, 202.)  “To establish personal jurisdiction, compliance with statutory procedures for service of process is essential.”  (Kremerman v. White (2021). 71 Cal.App.5th 358, 371.)  Defendant’s knowledge of the action does not dispense with statutory requirements for service of summons.  (Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466.)

“A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow” may move “to quash service of summons on the ground of lack of jurisdiction of the court over him or her” that results from lack of proper service.  (Code of Civ. Proc. § 418.10(a)(1).  A defendant has 30 days after the service of the summons to file a responsive pleading.  (Code Civ. Proc., § 412.20(a)(3).)

“When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.’” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.)

F.    Civil Code § 1788.61

According to Code of Civil Procedure § 1788.61, “[i]f service of a summons has not resulted in actual notice to a person in time to defend an action brought by a debt buyer and a default or default judgment has been entered against the person in the action, the person may serve and file a notice of motion and motion to set aside the default or default judgment and for leave to defend the action.”

G.    Analysis

First, the Court notes that Defendants have not properly served Plaintiff.  The Motion was served on Defendant at 2601 South Figueroa Street, Los Angeles, 90012 and 26500 W. Agoura Road #658, Calabasas, CA 91302.  (Mot. p. 24.)  However, Plaintiff’s Counsel’s address is 26500 West Agoura Road, Suite 102-502, Calabasas, CA 91302.  (Oppos. p. 1.)  And Counsel Deborah McClain’s office is located at 2601 South Figueroa Street, Los Angeles, CA, 90007.  (Compl. p. 1.)  Thus, the Court accepts Plaintiff’s late filed Opposition to the Motion.

Second, Defendants’ Motion is not timely.  Pursuant to Code of Civil Procedure § 473(b), an application for relief must be filed “no more than six months after entry of the judgment.”  Here, Judgment was entered on March 1, 2021, and the Motion was filed more than 17 months after Judgment was entered.  Alternatively, Code of Civil Procedure § 473.5 allows for a motion for relief two years after entry of default or 180 days after service of written notice of default/default judgment.  Here, Defendants were served with written notice of default judgment on April 13, 2021.  (4-16-21 Proof of Service.)  The Motion was filed well past the 180 days permitted by statute.

Third, the Court finds that Defendants have not presented any facts to show that they were not properly served to overcome the presumption established by the registered process server.  “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.)  Even after Summons and Complaint was served, Defendants were served with several other documents at 3004 West Avenue M2, Lancaster, CA 93536.  Defendants do not dispute that this is has been their address throughout the course of the proceedings.

Fourth, Defendants have not presented any facts that would constitute “mistake, inadvertence, surprise, or excusable neglect” pursuant to § 473(b) or any facts that demonstrate that the judgment is void pursuant to §473(d).

Finally, this action does not involve a debt buyer, so Civil Code § 1788.61 does not apply.

For these reasons, the Court does not have a basis to grant Defendants’ Motion to Set Aside Default and Default Judgment.  The Motion is DENIED.

III.            Conclusion & Order

For the foregoing reasons, the Motion to Set Aside/Vacate Default and Default Judgment filed by Defendants Dennis Waters Jr. and Dennis V. Waters is DENIED.

Moving party is to give notice.