Judge: Katherine Chilton, Case: 19STLC09692, Date: 2022-08-18 Tentative Ruling

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Case Number: 19STLC09692    Hearing Date: August 18, 2022    Dept: 25

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

 

MOVING PARTY:   Successor Trustee and Successor in Interest, Ingrid Alvarado

RESP. PARTY:         Plaintiff Tri-Tech Restoration

 

MOTION TO SET ASIDE/VACATE DEFAULT AND/OR DEFAULT JUDGMENT

(CCP §§ 473, 473.5)

 

TENTATIVE RULING:

 

Successor Ingrid Alvarado’s Motion to Set Aside/Vacate Default and/or Default Judgment is DENIED without prejudice.

 

SERVICE: 

 

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

[   ] Correct Address (CCP §§ 1013, 1013a)                                                 YES

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

 

OPPOSITION:          Filed on August 5, 2022.                                    [   ] Late                      [   ] None

REPLY:                     None filed as of August 16, 2022.               [   ] Late                      [X] None

 

ANALYSIS:

 

I.                Background

 

On October 21, 2019, Plaintiff Tri-Tech Restoration & Construction Co., Inc. (“Plaintiff”) filed an action against Maritza D. Lopez (“Lopez” or “Defendant”) for (1) breach of written contract, (2) common count – open book account, and (3) common count – services performed, arising out of a construction agreement.

 

No responsive pleadings were filed, so on December 6, 2019, Plaintiff filed a Request for Entry of Default/Judgment and default was entered on the same day.  Subsequently, Plaintiff filed a Request for Default Judgment; Default Judgment for Plaintiff and against Defendant Lopez was entered on July 17, 2020, in the amount od $5,527.21.  (7-17-20 Judgment by Court.)

 

On July 15, 2022, Ingrid Alvarado, as Successor Trustee of the Maritza Del Carmen Lopez Revocable Living Trust, and Successor in Interest to Defendant Maritza D. Lopez (“Successor”), filed the instant Motion to Set Aside/Vacate Default and/or Default Judgment (“Motion”).  On August 5, 2022, Plaintiff filed an Opposition to the Motion and Objection to Evidence.  No reply was filed.

 

II.              Legal Standard

 

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); Strathvale Holdings v. E.B.H.  (2005) 126 Cal.App.4th 1241, 1249).

 

III.            Discussion

 

Successor seeks to set aside the default and default judgment on the basis that Defendant passed away five (5) days before default was entered and two (2) months before entry of default judgment.  (Mot. ¶ 2.)  This is only partially correct.  Default was entered on December 6, 2019, and Defendant passed away on May 28, 2020.  The default judgment was entered by the Court after Defendant passed away.

 

More relevantly, however, Successor contends that “the summons, complaint, abstract of judgment, and requests for default/default judgment in this case were served at or mailed to the wrong address.”  (Ibid. at ¶ 5.)  Successor states that “[u]nder Sections 377.30 et seq. of the Code of Civil Procedure, the death of a litigant may be continued by that party’s personal representative or successor in interest. Section 7(B)(11) of the MARITZA DEL CARMEN LOPEZ REVOCABLE LIVING TRUST grants the successor trustee the ‘power to institute or defend legal actions concerning this trust or the grantor’s affairs.’  No proceeding is now pending in California for the administration of Maritza Lopez’s estate.”  (Ibid. at ¶ 3.)

 

Successor states that the Summons and Complaint, the Request for Entry of Default, and the Court Judgment were served on Defendant at 1153 E. 59th Street, Los Angeles, CA. Indeed, the Proof of Service of Summons lists that address and a registered process server states under oath that he personally served Defendant at that address.  Service of process by a registered process server is presumed to be valid.  Nonetheless, Successor argues that Defendant has no connection to that address; the relevant property address is 1153 East 50th Street, Los Angeles. 

 

Here, it appears that the Summons and Complaint and other pleadings were served at an incorrect address.  However, Successor has failed to provide the relevant evidence in the proper form.  Namely, Successor must prove where Defendant lived at the time of the service of the Summons and Complaint and must set forth facts in a declaration regarding Defendant’s connection to, or lack thereof, the two different addresses. For this reason, the Motion is DENIED without prejudice.

 

In Opposition, Plaintiff argues that the Motion must be denied because Successor should have filed a motion to be substituted as a party, pursuant to Code of Civil Procedure § 375 prior to filing the instant Motion.  (Opposition p. 2.) 

 

“[A] cause of action against a decedent that survives may be asserted against the decedent’s personal representative or, to the extent provided by statute, against the decedent’s successor in interest.”  (Code Civ. Proc., § 377.40.)  After the death of a defendant, the court, on motion, shall allow a pending action that does not abate to be continued against the decedent’s personal representative or successor-in-interest, “except that the court may not permit an action or proceeding to be continued against the personal representative unless proof of compliance with Part 4 (commencing with Section 9000) of Division 7 of the Probate Code governing creditor claims is first made.”  (Code Civ. Proc., § 377.41.)  Probate Code § 9370 sets forth the conditions that must be satisfied before an action may be continued against the decedent’s personal representative.

 

The Court finds that a separate motion must be filed by the Plaintiff to continue the action against Defendant’s personal representative. 

 

IV.           Conclusion & Order

 

For the foregoing reasons, Successor Ingrid Alvarado’s Motion to Set Aside/Vacate Default and/or Default Judgment is DENIED without prejudice.

 

Moving party to give notice.