Judge: Katherine Chilton, Case: 22NWLC08645, Date: 2022-12-13 Tentative Ruling
Case Number: 22NWLC08645 Hearing Date: December 13, 2022 Dept: 25
PROCEEDINGS: MOTION TO SET ASIDE/VACATE DEFAULT
MOVING PARTY: Defendant Donato Cortes dba Cortes Construction
RESP. PARTY: Plaintiff Creditors Adjustment Bureau, Inc.
MOTION TO SET ASIDE/VACATE DEFAULT
(CCP §§ 473(b), 473.5, 473(d))
TENTATIVE RULING:
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 September 21, 2022. [ ] Late [ ] None
REPLY: Filed on September 29, 2022. [ ] Late [ ] None
ANALYSIS:
I. Background
On April 18, 2022, Plaintiff Creditors Adjustment Bureau, Inc. (“Plaintiff”) filed an action against Defendants Urban Builders Specialists, Inc. aka Urban Builders (“Urban Builders”) and Donato Cortes dba Cortes Construction (“Cortes”), (collectively, “Defendants”), for breach of contract, open book account, account stated, and reasonable value. On June 8, 2022, Plaintiff filed Proof of No Service, indicating that service had not been successfully completed as to Defendants. On July 6, 2022, Plaintiff filed Proof of Personal Service as to Defendant Cortes.
On July 8, 2022, based on Plaintiff’s request, the Court entered default against Defendant Cortes. (7-8-22 Request for Entry of Default/Judgment.) The Court also dismissed Defendant Urban Builders and Does 1-10 without prejudice, based on Plaintiff’s Request for Dismissal. (7-8-22 Request for Dismissal; 8-29-22 Request for Dismissal.)
On August 4, 2022, Defendant Cortes filed the instant Motion to Set Aside/Vacate Default. On September 21, 2022, Plaintiff filed an Opposition to the Motion (“Opposition”) and on September 29, 2022, Defendant filed a Reply to the Opposition (“Reply”).
On September 9, 2022, the Court again entered default against Defendant Cortes and on September 20, 2022, default judgment was entered for Plaintiff and against Defendant Cortes in the amount of $20,878.39. (9-9-22 Request for Default; 9-20-22 Judgment.) On September 21, 2022, based on the Clerk’s Application to Vacate and Order, the Court vacated the default entered on September 9, 2022, and the default judgment entered on September 20, 2022. (9-21-22 Clerk’s Application.)
On October 10, 2022, the case was reassigned to the Honorable Judge Katherine Chilton in Department 25 of the Spring Street Courthouse. (10-10-22 Minute Order.) The instant Motion was scheduled to be heard in Department 25 on December 13, 2022. (10-19-22 Minute Order.)
II. Legal Standard
Courts may set aside default or default judgment pursuant to Code of Civil Procedure § 473.5 for lack of actual notice. “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.” (Code of Civ. Proc. § 473.5.) Furthermore, the notice must 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.”
Alternatively, 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 taken against him or her.” 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).) 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.)
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).)
III. Discussion
Defendant seeks to set aside the default entered against him on the ground that he was never properly served and alternatively, based on mistake, surprise, or excusable neglect. (Mot. pp. 1-2.) He also refers to Code of Civil Procedure § 585 for the argument that default may be entered only if Defendant was served with the pleadings. (Mot. p. 5.)
On June 8, 2022, a registered California process server, J. Martinez, noted attempts to serve Defendant at 11045 E. Mines Blvd, Whittier, CA 90606. (6-8-22 Proof of No Service Re: Cortes.) Martinez attempted to serve Defendant at this address on April 27, 2022, but there was “[n]o answer at residence.” (Ibid.) Martinez again tried to serve Defendant on April 30, 2022, at the same address but was told by an individual described as “LATINO/M/35YRS” that Defendant was the previous occupant, he had never heard of the said company, and that he returns mail received for Cortes to the post office. (Ibid.) On July 6, 2022, another registered California process server, Jeffrey L. Levine dba Ace Process Service, prepared Proof of Service indicating that he personally served Defendant on June 2, 2022 at 11045 E. Mines Blvd, Whittier, CA 90606. (7-6-22 Proof of Personal Service.) He indicates that the person served was “Donato Cortes Dba Cortes Construction (hispanic Male, 55. Black hair, Goatee, Med built.” (Ibid.)
Defendant states that he was never served and did not learn about the case until he received a notice of default by mail around July 11 or 12. (Cortes Decl. ¶¶ 2, 8.) He would have appeared in the case earlier if he had been aware of the pending proceedings. (Ibid. at ¶ 3.) He immediately sought advice from an attorney and is now ready to participate in the proceedings. (Ibid. at ¶¶ 4-5, 8.) Defendant states that the description of the individual who was served does not apply to him, as he is “45 years old, five foot, nine inches tall and weight 150 pounds (which I think makes me ‘slight’ not medium build), but most significantly, I don’t have and did not in June have any facial hair.” (Ibid. at ¶ 6.) Defendant indicates that his girlfriend’s son also lives at the same address and better fits the description provided by the process server. (Ibid. at ¶ 7.)
Counsel retained by Defendant, Derek L. Tabone, states that he met with Defendant on July 19, 2022, after default was entered against Defendant. (Tabone Decl. ¶ 2.) Counsel attempted to resolve the matter informally by contacting Plaintiff’s attorney and requesting to set aside the default by stipulation; however, Plaintiff’s attorney did not agree to do so. (Ibid. at ¶¶ 5-6, Exs. A-B.)
Defendant has filed a proposed Answer to the Complaint, along with the Motion. (Ibid. at ¶ 7, Ex. C.)
In its Opposition, Plaintiff argues Defendant was properly served. (Oppos. p. 1.) First, 11045 E. Mines Blvd, is the address listed for Defendant Cortes by the Contractor’s State License Board, the Lexis Nexus Accurint, and on Cortes’s driver license. (Freed Decl. ¶¶ 2-4, Exs. 1-2, 4.) In his declaration, Cortes does not deny that he lives with his girlfriend and girlfriend’s son. (Oppos. p. 2, citing to Cortes Decl. at ¶ 6.) Second, if the description provided by the process servers matches that of Defendant Cortes’s girlfriend’s son, then the son “answered the door and blatantly lied to the process server” on April 30, 2022, when he stated that Cortes was a previous occupant. (Ibid. at p. 2.) Third, when the second process server, Jeff Levine, attempted service, the door at the residence was answered by Donato Cortes, who confirmed his identity and stated that he knew the reason for the lawsuit. (Levine Decl. ¶ 2, Ex. 1.) In his declaration, Levine states that he “made handwritten contemporary notes…[that] provide a detailed description of what transpired when [he] served the defendant.” (Ibid. at ¶ 3, Ex. 2.) Plaintiff argues that Defendant is providing false testimony by stating that he was not the person who was served and asks the Court to disregard Defendant’s statements. (Oppos. p. 3.) Plaintiff also argues that mere technical deficiencies in a proof of service do not invalidate service. (Ibid. at p. 5.) It states that “even assuming the person who answered the door falsely represented he was Donato Cortes…an adult male received the summons and complaint at the residence of Mr. Cortes.” (Ibid. at p. 6.) The absence of Defendant Cortes’s girlfriend’s son’s testimony “speaks volumes” and indicates that it would be unfavorable to the Defendant. (Ibid.)
In his Reply, Defendant reiterates that despite the process server’s detailed description of his purported interaction with the Defendant, the process server’s physical description does not match the Defendant and Defendant “has never had a goatee or any type of facial hair.” (Reply pp. 2-3.) Defendant also addresses Plaintiff’s argument that defense counsel falsely stated that Defendant was in his 30’s. (Ibid.) Defense counsel accepts his mistake, but states that this further proves that Defendant did not look like he was 55 years old, as stated in the Proof of Service. (Ibid. at p. 3.)
Defendant also argues that the problem with service is more than a mere technicality, as Defendant was not properly served and, thus, the Court did not acquire personal jurisdiction over Defendant. (Ibid. at pp. 3-4.) Defendant “immediately responded and provided an answer once he was given notice of the default.” (Ibid.) While Defendant would be severely prejudiced if the Motion is denied, Plaintiff would not suffer any prejudice. (Ibid. at p. 4.)
Furthermore, Defendant states that even substitute service was not completed as the pleadings were left at Defendant’s address, but a copy of the pleadings was not mailed to Defendant. (Ibid. at p. 6.)
Finally, Defendant addresses the cases cited by Plaintiff and argues that “[n]one of these cases support Plaintiff’s position in this case.” (Ibid.)
The Court finds that under Code of Civil Procedure §§ 473(b), 473(d), and 473.5, Defendant’s Motion was filed timely.
Furthermore, having reviewed the parties’ arguments and legal authorities cited, the Court finds that Defendant was not properly served with the pleadings.
Here, Plaintiff has submitted the declaration of a registered process server stating that the pleadings were left with an individual who confirmed he was Defendant Cortes. “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.) Thus, 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.
However, Defendant has submitted a sworn declaration stating that the physical description provided by the process server does not match the physical description of Defendant. This supports Defendant’s argument that he was not personally served. In the alternative, if the pleadings were left with a co-occupant, in this case Defendant Cortes’s girlfriend’s son, who matches the physical description, substitute service would have required subsequent mailing of the pleadings to the address, as required by Code of Civil Procedure § 415.20. Here, the pleadings were not subsequently mailed to Defendant’s address and Defendant states that he was notified about the proceedings after receiving a notice of default in the mail.
Given that less than a month after the Court entered default against Defendant, he filed a Motion to Set Aside Default along with a copy of his Answer to the Complaint, the Court finds that Defendant was not evading the lawsuit.
For these reasons, the Court has discretion to set aside default for lack of actual notice pursuant to Code of Civil Procedure § 473.5. Defendant Corte’s Motion to Set Aside/Vacate Default is GRANTED.
IV. Conclusion & Order
For the foregoing reasons,
Defendant Donato Cortes’s Motion to Set Aside/Vacate Default is GRANTED. Default entered on July 8, 2022, is hereby VACATED. Defendant is ordered to file his Answer within 10 days’ of this Order.
Moving party is ordered to give notice.