Judge Katherine Chilton, Case 22STLC06064 2023-03-28 Tentative Ruling

Judge: Katherine Chilton, Case: 22STLC06064, Date: 2023-03-28 Tentative Ruling

Case Number: 22STLC06064 Hearing Date: March 28, 2023 Dept: 25

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

MOVING PARTY: Defendants Guanying Lin, Yude Jou

RESP. PARTY: None

MOTION TO SET ASIDE/VACATE DEFAULT AND DEFAULT JUDGMENT

(CCP §§ 473(b), 473.5)

TENTATIVE RULING:

The Motion to Set Aside/Vacate Entry of Default and Default Judgment filed by Defendant Guanying Lin is GRANTED. Default entered on January 6, 2023, and default judgment entered on January 24, 2023, are hereby VACATED. Defendant Lin is ordered to file an Answer and Cross-Complaint within 10 days’ notice of this Court Order.

The Motion to Set Aside/Vacate Entry of Default and Default Judgment filed by Defendant Yude Jou (erroneously sued as Ya De Jou) is GRANTED. Default entered on January 6, 2023, and default judgment entered on January 24, 2023, are hereby VACATED. Defendant Jou is ordered to file an Answer within 10 days’ notice of this Court Order.

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: None filed as of March 26, 2023. [ ] Late [X] None

REPLY: None filed as of March 26, 2023. [ ] Late [X] None

ANALYSIS:

I. Background

On September 19, 2022, Plaintiff Renovating Specialist, Inc. dba Sivan Windows & Doors (“Defendant” or “Renovating Specialist”) filed an action against Defendants Guanying Lin (“Lin”) and Ya De Jou[1] (“Jou), (collectively “Defendants”) for breach of contract and common counts.

On December 16, 2022, Plaintiff filed Proofs of Service indicating that Defendants had been served by substituted service on October 8, 2022, at 8105 Gentry Avenue, North Hollywood, CA 91605, as a registered California process server left the documents with co-resident Tiffany Kuo and subsequently mailed the documents on October 10, 2022, to the same address. (12-16-22 Proofs of Service.)

On January 6, 2023, based on Plaintiff’s request, the Court entered default against Defendants Lin and Jou. (1-6-23 Request for Entry of Default.) Default judgment was entered on January 24, 2023, for Plaintiff and against Defendants in the amount of $14,228.74. (1-24-23 Default Judgment.)

On February 3, 2023, Plaintiff filed an Abstract of Judgment and on February 8, 2023, it filed an Acknowledgement of Partial Satisfaction of Judgment, in the amount of $1,036.72.

On March 1, 2023, Defendants Lin and Jou, in propria persona, filed Motions to Set Aside/Vacate Entry of Default and Default Judgment (“Motion re: Lin” and “Motion re: Jou”). No opposition has been filed.

On March 14, 2023, Plaintiff filed a Substitution of Attorney.

II. Legal Standard

The California Supreme Court has held that “failure to have served the summons and complaint is a defense to an action on a judgment.” (Ibid. at 202, referring to Hill v. City Cab etc. Co. (1889) 79 Cal. 188, 190-191.) “‘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.)

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.)

“Even where relief is no longer available under statutory provisions, a trial court generally retains the inherent power to vacate a default judgment…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).)

To set aside a default judgment based upon extrinsic mistake, the defaulting party must show that 1) it has a meritorious case, 2) it has a satisfactory excuse for not presenting a defense to the original action, and 3) it acted diligently in moving to set aside the default once … discovered. (Stiles, 147 Cal.App.3d at,1147.)

III. Discussion

A. Motion re: Guanying Lin

Defendant Lin, in propria persona, moves for a Court order vacating default and default judgment entered against Lin. (Mot. re: Lin, p. 2.) Defendant also requests permission to file an Answer to the Complaint and a Cross-Complaint against Plaintiff. (Ibid.) Defendant’s Motion is based on the premise that Linwas not served with the summons and complaint and the address where Plaintiff served Defendant via substituted service was not Lin’s residence or mailing address. (Ibid.)

On December 16, 2022, Plaintiff filed Proof of Service indicating that Defendant Lin had been served by substituted service on October 8, 2022, at 9:40 a.m. at 8105 Gentry Avenue, North Hollywood, CA 91605. (12-16-22 Proof of Service re: Lin.) A registered California process server left the documents with co-resident Tiffany Kuo, described as 35 years old, 5’2’’, 100 lbs., Asian, female with brown hair. (Ibid.) Subsequently, on October 10, 2022, the process server mailed the documents by first-class mail, postage prepaid, to the same address. (Ibid.) The server attached a Declaration of Diligence, demonstrating that he unsuccessfully attempted to serve Defendant Lin at this address on September 25, 27, 30, and October 2, and 5, 2022. (Ibid. at p. 3.)

Defendant Lin states that in March 2022, Lin entered into a written agreement with Plaintiff according to which Plaintiff was hired to replace and install window frames and glass at Lin’s single residential property located at 8105 Gentry Avenue, North Hollywood, CA 91605. (Mot. p. 4.) Lin states that on October 8, 2022, the date of service, Lin was not residing at this address and was not using the address as his mailing address. (Lin Decl. ¶ 2.) The person residing at the property between June and December, 2022, was Tiffany Kuo. (Ibid.) Lin argues that it was Plaintiff who breached the service agreement and thus, Lin seeks to file a Cross-Complaint against Plaintiff. (Ibid. at ¶¶ 3-5.) Defendant has attached a copy of a proposed Answer and a copy of proposed Cross-Complaint. (Ibid. at ¶¶ 6-7, Exs. A-B.)

Defendant has also filed a sworn statement from Tiffany Kuo, who was residing at 8105 Gentry Avenue, North Hollywood, CA 91605, between June and December 2022. (Kuo Decl. ¶ 2.) Kuo states that during this time frame, Defendant Lin did not reside at this address. (Ibid. at ¶ 3.) She also states that she “vaguely recall[s] receiving some court documents in or about October, 2022” but given that the documents were not addressed to her, she “discarded them, and did not give them to GUANYING LIN or YUDE JOU.” (Ibid. at ¶¶ 5-6.)

Defendant Lin seeks to vacate the default and default judgment pursuant to Code of Civil Procedure § 473, but Lin has failed to produce any facts demonstrating that default and default judgment were entered due to “mistake, inadvertence, surprise or excusable neglect.” However, relief from default and default judgment is also available pursuant to Code of Civil Procedure § 473.5, when it results from 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.”

The Court finds that Defendant Lin’s Motion is timely under § 473.5.

The Court notes that the service was effectuated via a 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.) 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 the individual served. (12-16-22 Proof of Service re: Lin.)

However, the Court finds that Defendant has produced sufficient evidence to overcome this presumption. Defendant has submitted a sworn statement that Lin was not living at the address at the time of service. Lin has also submitted a sworn statement from the individual residing at the address explaining that Defendant Lin did not live at this address, and she did not give Lin the court documents that were left with her by the process server.

Given the strong policy in favor of granting relief and allowing the requesting party to litigate the case, as well as the facts presented by Defendant Lin, Defendant’s Motion to Set Aside/Vacate Entry of Default and Default Judgment is GRANTED. Default, entered on January 6, 2023, and default judgment, entered on January 24, 2023, are hereby vacated. Defendant Lin is ordered to file an Answer within 10 days’ notice of this Court. Pursuant to Code of Civil Procedure § 428.50, Defendant Lin can also file the proposed Cross-Complaint simultaneously with the Answer.

B. Motion re: Yude Jou

Defendant Yude Jou, erroneously sued as Ya De Jou, in propria persona, moves for a Court order vacating default and default judgment entered against him and permitting him to file an Answer to Plaintiff’s Complaint. (Mot. re: Jou, p. 2.) Defendant Jou’s Motion is based on the premise that Jou was not served with the summons and complaint and the address where Plaintiff served Defendant Jou via substituted service was not Jou’s residence or mailing address. (Ibid.)

On December 16, 2022, Plaintiff filed Proof of Service indicating that Defendant Jou had been served by substituted service on October 8, 2022, at 9:40 a.m. at 8105 Gentry Avenue, North Hollywood, CA 91605. (12-16-22 Proof of Service re: Jou.) A registered California process server left the documents with co-resident Tiffany Kuo, described as 35 years old, 5’2’’, 100 lbs., Asian, female with brown hair. (Ibid.) Subsequently, on October 10, 2022, the process server mailed the documents by first-class mail, postage prepaid, to the same address. (Ibid.) The server attached a Declaration of Diligence, demonstrating that he unsuccessfully attempted to serve Defendant Jou at this address on September 25, 27, 30, and October 2, and 5, 2022. (Ibid. at p. 3.)

In March 2022, Defendant Lin entered into a written agreement with Plaintiff according to which Plaintiff was hired to replace and install window frames and glad at Lin’s single residential property located at 8105 Gentry Avenue, North Hollywood, CA 91605. (Mot. p. 4.) Defendant Jou did not sign the written agreement and was not party to the contract, thus, Jou states that Jou should be dismissed from the case. (Ibid.; Jou Decl. ¶¶ 3-4.) Defendant Jou argues that Jou was not properly served because at the time of service, on October 8, 2022, Jou did not reside at 8105 Gentry Ave., North Hollywood, CA 91605, and was not using the property as Jou’s mailing address. (Jou Decl. ¶ 2.) At the time, Tiffany Kuo was the resident of the property. (Ibid. at ¶ 2.)

A copy of a proposed Answer is attached to the Motion. (Ibid. at ¶ 7, Exs. A.)

Defendant has also filed a sworn statement from Tiffany Kuo, who was residing at 8105 Gentry Avenue, North Hollywood, CA 91605 between June and December 2022. (Kuo Decl. ¶ 2.) Kuo states that during this time frame, Defendant Lin did not reside at this address. (Ibid. at ¶ 3.) She also states that she “vaguely recall[s] receiving some court documents in or about October, 2022” but given that the documents were not addressed to her, she “discarded them, and did not give them to GUANYING LIN or YUDE JOU.” (Ibid. at ¶¶ 5-6.)

Defendant Jou seeks to vacate the default and default judgment under Code of Civil Procedure § 473, but Jou has failed to produce any facts demonstrating that default and default judgment were entered due to “mistake, inadvertence, surprise or excusable neglect.” However, relief from default and default judgment is also available pursuant to Code of Civil Procedure § 473.5, when it results from 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.”

However, the Court finds that Defendant Jou has produced sufficient evidence to overcome this presumption. Defendant has submitted a sworn statement that Jou was not living at the address at the time of service. Jou has also submitted a sworn statement from the individual residing at the address explaining that Defendant Jou did not live at this address, and she did not give Jou the court documents that were left with her by the process server.

Given the strong policy in favor of granting relief and allowing the requesting party to litigate the case, as well as the facts presented by Defendant Jou, Defendant’s Motion to Set Aside/Vacate Entry of Default and Default Judgment is GRANTED. Default, entered on January 6, 2023, and default judgment, entered on January 24, 2023, are hereby vacated. Defendant Jou is ordered to file an Answer within 10 days’ notice of this Court.

IV. Conclusion & Order

For the foregoing reasons,

Moving party is ordered to give notice.

[1] Defendant Yude Jou was erroneously sued as Ya De Jou.