Judge: Katherine Chilton, Case: 21STLC04630, Date: 2023-02-15 Tentative Ruling

Case Number: 21STLC04630     Hearing Date: February 15, 2023    Dept: 25

PROCEEDINGS:      MOTION TO SET ASIDE/VACATE DEFAULT

MOVING PARTY:   Defendant Dameon Powell

RESP. PARTY:         Plaintiff Nerfitte Wanzo

MOTION TO SET ASIDE/VACATE DEFAULT

(CCP § 473(d), 473.5.)

TENTATIVE RULING:

Defendant Dameon Powell’s Motion to Set Aside Default is GRANTED.  Default entered on October 27, 2021, is hereby VACATED.  Defendant is ordered to file a responsive pleading within 5 days of the Court’s order.

Furthermore, Plaintiff’s request for monetary sanctions is DENIED.

SERVICE: 

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

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

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

OPPOSITION:          Filed on January 26, 2023.                                    [   ] Late                      [   ] None

REPLY:                     Filed on February 3, 2023.                                    [   ] Late                      [   ] None

ANALYSIS:

I.                Background

On June 21, 2021, Plaintiff Nerfitte Wanzo (“Plaintiff”) filed a complaint against Defendant Dameon Powell (“Defendant”) for motor vehicle and general negligence arising out of an alleged motor vehicle accident on June 1, 2019.

On October 27, 2021, pursuant to Plaintiff’s request, the Court entered default against Defendant.  (10-27-21 Request for Entry of Default.)

On November 17, 2021, Plaintiff filed a Notice of Related Case.

On December 19, 2022, the Court noted that no appearances were entered by either party and placed trial off calendar.  (12-19-22 Minute Order.)  The Court also scheduled Orders to Show Cause re: Entry of Default Judgment and re: Dismissal of the Case or Sanctions for Plaintiff’s Failure to Appear on the Date of Trial for March 20, 2023.  (Ibid.)  On January 4, 2023, Plaintiff’s counsel filed an Opposition to Order to Show Cause, arguing that he had assumed the trial was placed off calendar following the entry of default against Defendant.  (1-4-23 Minute Order.)

On January 9, 2023, Plaintiff filed a Request for Entry of Default/Judgment along with supplemental papers.

On January 20, 2023, Defendant filed the instant Motion to Set Aside Default (“Motion”) along with a Request for Judicial Notice (“RJN”).  Plaintiff filed an Opposition to the Motion (“Opposition”) on January 26, 2023.  Defendant filed a Reply to the Opposition (“Reply”) on February 3, 2023.

II.              Request for Judicial Notice

Defendant requests that the Court take judicial notice of the following exhibits attached to the declaration of Josephine Baurac:

1)     Exhibit 1: Notice of Related Case, Case No. 21STLC04630, filed on November 17, 2021;

2)     Exhibit 2: Complaint for Personal Injuries, Case No. 21STCV20446, Wardlaw, Williams v. Wanzo; Powell, filed on June 1, 2021;

3)     Exhibit 3: Answer of Dameon L. Powell to Complaint, Case No. 21STCV20446;

4)     Exhibit 4: Complaint, Case No. 21STLC04630, filed on June 21, 2021;

5)     Exhibit 5: Cross-Complaint of Dameon L. Powell against Nerfitte Wanzo, Case No. 21STCV20446;

6)     Exhibit 6: Proof of Service of Powell’s Cross-Complaint on Nerfitte Wanzo, Case No. 21STCV20446;

7)     Exhibit 7: Plaintiff’s Application for Publication, Case No. 21STCV20446, Wardlaw, Williams v. Wanzo; Powell, filed on January 17, 2023;

8)     Exhibit 8: Proof of Service by First-Class Mail, Case No. 21STLC04630, Wanzo v. Powell, showing service by Wanzo via mail of Statement of Damages on October 8, 2021

According to Evidence Code § 452, the Court may take judicial notice of matters that include records or rules of another court and facts or propositions of common knowledge, among other matters.  Thus, Defendant’s Request is GRANTED.

III.            Legal Standard

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 discretionary1vv 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.)

Furthermore, “[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.”  (Code of Civ. Proc. § 473(d).)

IV.           Discussion

A.    Motion to Set Aside Default

On June 21, 2021, Plaintiff initiated the instant action against Defendant.  On July 13, 2021, Plaintiff filed Proof of Service of Summons, Complaint, and related documents by substituted service.  (7-13-21 Proof of Service.)  The Proof of Service contains a Declaration of Diligence demonstrating that Plaintiff’s process server attempted to serve Defendant on July 7 and 9, 2021, before serving Defendant by substitute service.  (Ibid. at p. 3.)  On July 10, 2021, at 12:46 p.m., the California registered process server left the pleadings at 3017 Potomac Ave Apt. 1, Bakersfield, CA 93307-2215, with Leona Powell, Defendant’s co-resident and daughter, with a physical description provided.  (Ibid. at p. 1.)  On the same day, the process server mailed the pleadings to the same address by first class mail.  (Ibid. at p. 4.)

On October 27, 2021, Plaintiff filed Proof of Service by Mail, indicating that on October 8, 2021, Plaintiff served the Statement of Damages on Defendant by first class mail.  (10-27-21 Proof of Service.)  On November 2, 2022, Plaintiff filed proof that Defendant was personally served with the Statement Damages on December 1, 2021.  (11-2-22 Proof of Service.)

Defendant seeks to set aside default and default judgment entered against him because the default and/or judgment are “void as a matter of law and void on its face, pursuant to Code of Civil Procedure 473(d), as the judgment was improperly entered,” and also, pursuant to § 473(b).  (Mot. pp. 1-2.)  The Court notes that default was entered against Defendant on October 27, 2021; however, default judgment has not been entered.

Defendant also argues that there is a related case involving Plaintiff and Defendant and the same motor vehicle accident, Wardlaw, et al. v. Wanzo et al., No. 21STCV20446, and a hearing for motion to consolidate cases is reserved for August 15, 2023, in Wardlaw.  (Ibid. at pp. 2-3; Baurac Decl. ¶¶ 4, 6.)

Defendant argues that given that the instant matter is a personal injury case, Code of Civil Procedure § 425.11(d) requires the statement of damages to be served in the same manner as a summons if the defendant has not yet made an appearance.  (Mot. p. 4.)  Here, “the Court entered default based on improper service of a statement of damages by mail” and the Statement of Damages was properly served by personal service after the entry of default.  (Ibid.)  For this reason, the default entered is void on its face and void in fact.  (Ibid.). Pursuant to § 473(d), a void judgment may be set aside at any time and is not subject to a six-month period.  (Ibid. at p. 5.)

Moreover, Defendant argues that the default should be set aside pursuant to Code of Civil Procedure § 473(b), due to “surprise, inadvertence, mistake or excusable neglect by defendant Powell.”  (Ibid. at p. 6.)  Specifically, Defendant “did not advise his counsel of service of a request for court judgment” which was served on him on January 9, 2023, and Plaintiff’s counsel learned of this filing on January 19, 2023 when reviewing the instant Motion and the Court’s Register of Actions.  (Ibid.; Baurac Decl. ¶¶ 21-22.)

Finally, Defendant sets forth reasons why consolidating the two related cases arising out of the same automobile accident is appropriate.  (Ibid. at pp. 6-7; Baurac Decl. ¶¶ 5, 23.)

Defendant has attached a proposed Answer to Complaint as Exhibit 9 to Declaration of Josephine Baurac.  (Mot. p. 7; Baurac Decl. ¶ 24, Ex. 9.)

Plaintiff opposes Defendant’s Motion and requests sanctions in the amount of $1,000.00 against Defendant and his counsel, pursuant to Code of Civil Procedure § 473(c)(1)(A).

First, Plaintiff argues that the Motion, which was served by email and overnight mail on January 20, 2023, was untimely and should be denied on that basis.  (Oppos. p. 2.)  Second, Defendant’s Motion, premised on Code of Civil Procedure § 473(b), should be denied because it was filed over 15 months after default was entered and does not describe how Defendant’s failure to notify his counsel of documents he received amounts to “surprise, inadvertence, mistake or excusable neglect.”  (Ibid. at pp. 2-3.)  Plaintiff’s counsel’s declaration also “fails to show requisite surprise, inadvertence nor excusable neglect.”  (Ibid.)  Third, Plaintiff opposes Defendant’s argument that the default is void on its face because Defendant admits that he was served by substitute service with the Summons and Complaint and personally served with the Statement of Damages on December 1, 2021.  (Ibid.)  Neither Plaintiff nor his counsel contest these facts and Defendant does not provide any reasons for his “intentional disregard of this action.”  (Ibid. at p. 3.)

Finally, Plaintiff states that “there is no factual or legal basis articulated” to grant Defendant’s Motion.  (Ibid.)  Plaintiff argues that Defendant’s “unexplained and intentional disregard of this action” has caused a delay of 18 months and severely prejudiced Plaintiff in being compensated for her injuries and being able to locate witnesses.  (Ibid. at pp. 3-4.)  Plaintiff has also incurred unnecessary costs and attorney’s fees.  (Ibid.)  Thus, if the Court does grant the Motion, Plaintiff requests $1000.00 in monetary sanctions to be paid by Defendant and/or his counsel pursuant to Code of Civil Procedure § 473(c)(1)(A).  (Ibid.)

In his Reply, Defendant reiterates that the case should be resolved on the merits given the related case discussed previously.  (Reply pp. 2-3.)  Defendant also states that the substitute service of the Summons and Complaint “is not lawful service” and Plaintiff does not cite to any authority allowing such service, particularly because there is “no document of acknowledgment by defendant Powell that he received service by mail or authorized service of a summons and complaint via mail.”  (Ibid. at p. 3.)  Furthermore, Plaintiff’s personal service of the Statement of Damages on December 1, 2021, “does not rectify the fact that such personal service occurred after the improper entry of default on October 27, 2021.”  (Ibid.)

Moreover, Defendant argues that counting sixteen court days prior to February 15, 2023, and adding two extra days for service by email or overnight service, indicates that service of the moving papers on January 20, 2023, was timely.  (Ibid.)  Plaintiff’s counsel has also admitted to receiving the moving papers by email on January 20, 2023.  (Ibid. at p. 4.)

Finally, Defendant argues that “monetary sanctions are improperly requested and unwarranted” as Defendant’s “motion is brought in good faith and in the interest of justice, as this matter deserves to be judged on the merits.”  (Ibid. at p. 4.)

The Court makes the following findings.

First, Defendant’s Motion was timely served on Plaintiff.  Code of Civil Procedure § 1005(b) requires moving papers to be served at least 16 court days before the hearing.  When served by “facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 16-day period of notice before the hearing shall be increased by two calendar days.”  (Code of Civil Procedure § 1005(b).)  Here, Proof of Service indicates that the moving papers were served by electronic mail and overnight delivery on January 20, 2023.  (Mot. pp. 9-10.)  Plaintiff’s counsel admits to receiving the moving papers by email on January 20, 2023.  (Oppos. p. 15 – DeLuca Decl. ¶ 23.)  Given that service was accomplished by email 16 courts days and one calendar day before the hearing on the Motion, the Court does not deny Defendant’s motion on this basis.

Second, Defendant was properly served with the Summons and Complaint.  Code of Civil Procedure § 415.20(b) states that:

If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service 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 Postal Service 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 complaint were left.

On July 13, 2021, Plaintiff filed Proof of Service of Summons, Complaint, and related documents by substitute service.  (7-13-21 Proof of Service.)  The Proof of Service contains a Declaration of Diligence demonstrating that Plaintiff’s process server attempted to serve Defendant on July 7 and 9, 2021, before serving Defendant by substitute service.  (Ibid. at p. 3.)  On July 10, 2021, at 12:46 p.m., the California registered process server left the pleadings at 3017 Potomac Ave Apt. 1, Bakersfield, CA 93307-2215, with Leona Powell, Defendant’s co-resident and daughter, with a physical description provided.  (Ibid. at p. 1.)  On the same day, the process server mailed the pleadings to the same address by first class mail.  (Ibid. at p. 4.)  “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 by filing Proof of Service by a registered process server that indicates the time, date, and address of service, and provides a physical description of Defendant.  For this reason, the Court does not find that the service of Summons and Complaint was improper.

However, the Court does find that default was improperly entered based on Plaintiff’s service of the Statement of Damages via mail.  Code of Civil Procedure § 425.11 sets forth the following:

(b) When a complaint is filed in an action to recover damages for personal injury or wrongful death, the defendant may at any time request a statement setting forth the nature and amount of damages being sought. The request shall be served upon the plaintiff, who shall serve a responsive statement as to the damages within 15 days. In the event that a response is not served, the defendant, on notice to the plaintiff, may petition the court in which the action is pending to order the plaintiff to serve a responsive statement.

(c) If no request is made for the statement referred to in subdivision (b), the plaintiff shall serve the statement on the defendant before a default may be taken.

(d) The statement referred to in subdivision (b) shall be served in the following manner: (1) If a party has not appeared in the action, the statement shall be served in the same manner as a summons.

            Here, the Court entered default on October 27, 2021, after Plaintiff filed Proof of Service indicating that the Statement of Damages had been served on Defendant by mail.  (10-27-21 Request for Default; 10-27-21 Proof of Service.)  Defendant had not yet appeared in the case.  It was not until December 2, 2021, that Defendant had been served with the Statement of Damages by personal service.  (11-2-22 Proof of Service.)  The Court finds that it improperly entered default prior to the Defendant being properly served with the Statement of Damages by personal service.  Thus, pursuant to Code of Civil Procedure § 473(d), the Court may set aside the default against Defendant.

The Court also finds that it may set aside the default in the instant case on equitable grounds.  “Even where relief is no longer available under statutory provisions, a trial court generally retains the inherent power to vacate a default judgment or order on equitable grounds where a party establishes that the judgment or order was void for lack of due process or resulted from extrinsic fraud or mistake.” (County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1228; Bacon v. Bacon (1907) 150 Cal. 477, 491-92; Olivera v. Grace, 122 P.2d 564, 567-68; Stiles v. Wallis (1983) 147 Cal.App.3d 1143, 1147 (“There are four grounds which a court, utilizing its equity capacity may rely upon to provide relief from default.  Those areas are (1) void judgment, (2) extrinsic fraud, (3) constructive service, and (4) extrinsic mistake.”)  In limited civil cases, grounds for equitable relief also include “inadvertence or excusable neglect.”  (Code of Civ. Proc. § 86(b)(3).)  Given that default was improperly entered, here, the Court may set aside the default on equitable grounds.

For the reasons discussed, the Court GRANTS Defendant’s Motion to Set Aside Default.  Default, entered on October 27, 2021, is hereby VACATED.  Defendant is ordered to file the proposed Answer within 5 days of the Court’s Order.

As a final note, the Court will not discuss the matter of consolidating the instant case with the related case discussed above as a hearing for Motion to Consolidate these cases is reserved for August 15, 2023, in Case No. 21STCV20446.

B.    Monetary Sanctions

In the case that the Court grants Defendant’s Motion, Plaintiff requests $1000.00 in monetary sanctions to be paid by Defendant and/or his counsel pursuant to Code of Civil Procedure § 473(c)(1)(A).  (Oppos. pp. 3; DeLuca Decl. ¶¶  28-29.)

According to Code of Civil Procedure § 473(c)(1)(A), “[w]henever the court grants relief from a default, default judgment, or dismissal based on any of the provisions of this section, the court may…[i]mpose a penalty of no greater than one thousand dollars ($1,000) upon an offending attorney or party.”

Here, the Court grants Defendant’s Motion to Set Aside Default.  However, the Court finds that monetary sanctions are not warranted as the default is set aside due to Plaintiff’s failure to properly served Defendant with the Statement of Damages prior to seeking default.

For this reason, Plaintiff’s request for monetary sanctions is DENIED.

V.             Conclusion & Order

For the foregoing reasons,

Defendant Dameon Powell’s Motion to Set Aside Default is GRANTED.  Default entered on October 27, 2021, is hereby VACATED.  Defendant is ordered to file a responsive pleading within 5 days of the Court’s order.

Furthermore, Plaintiff’s request for monetary sanctions is DENIED.

Moving party is to give notice.