Judge Katherine Chilton, Case BC718899 2022-12-19 Tentative Ruling

MOVING PARTY: Defendant Tricia Bhotiwihok, owner of Tricia Fix LLC (erroneously sued as Tricia Fix)

The Motion to Set Aside/Vacate Default and Default Judgment filed by Defendant Tricia Bhotiwihok (erroneously sued as Tricia Fix) is GRANTED. Default entered on July 24, 2019, and default judgment entered on January 10, 2020, are hereby VACATED.

On August 28, 2018, Plaintiff Albert Kamkar (“Kamkar”) and James Shin (“Shin”) filed a filed an action against Defendant Tricia.

On November 6, 2018, the case was reclassified as a limited civil jurisdiction case. (11-6-18 Minute Order; 11-30-18 Notice of Reclassification.)

On February 13, 2019, Plaintiffs filed Proof of Personal Service, indicating that Defendant was personally served with the pleadings on January 29, 2018. (2-13-19 Proof of Service.)

On March 29, 2019, and May 1, 2019, the Court rejected Plaintiffs’ Requests for Entry of Default because the Complaint did not indicate Defendant’s last name and Proof of Service indicated that the Complaint had been served before it was filed with the Court. (3-29-19 Notice of Rejection; 5-1-19 Notice of Rejection.)

On May 6, 2019, Plaintiffs filed the First Amended Complaint (“FAC”) against Defendant Tricia Fix (“Fix”) for four counts of breach of contract. On May 7, 2019, Plaintiffs filed Proof of Service indicating that the First Amended Complaint was personally served on May 6, 2019, (5-7-19 Proof of Service.)

On May 30, June 11, and June 20, 2019, the Court rejected Plaintiffs’ Requests for Entry of Default, due to deficiencies in the Proof of Personal Service filed on May 7, 2022. (5-30-19 Notice of Rejection; 6-11-19 Notice of Rejection; 6-20-19 Notice of Rejection.)

On June 28, 2019, Plaintiffs filed an Amended Proof of Personal Service and another Request for Entry of Default. On July 15, 2019, the Court rejected the Request for Default due to another deficiency in the Proof of Service. (7-15-19 Notice of Rejection.)

On July 24, 2019, Plaintiffs filed a Second Amended Proof of Personal Service indicating that the First Amended Complaint was personally served on Defendant Tricia Fix at 5037 Shipley Glen Dr., Los Angeles, CA 90042, and describing Defendant as “around 45-50 years old, her nationality is Latino, around 145-155 pounds.” (7-24-19 Proof of Service.) Service was effectuated by Elizabeth Shim, who is not a registered California process server. (Ibid.)

On the same day, based on Plaintiffs’ request, the Court entered default against Defendant Tricia Fix. (7-24-19 Request for Entry of Default.) Judgment was entered on January 10, 2020, for Plaintiffs and against Defendant in the amount of $22,500.00. (1-10-20 Default Judgment.)

On June 30, 2022, Assignee of Record, Eugene Kim (“Kim”), in propria persona, filed Notice of and Acknowledgment of Assignment of Judgment.

On November 7, 2022, Defendant Tricia Bhotiwihok, owner of Tricia Fix LLC, erroneously sued as Tricia Fix, filed the instant Motion to Set Aside Default and Default Judgment (“Motion”). Counsel for Defendant filed Notice of Limited Scope Representation, indicating that representation is limited to the instant Motion. (11-7-22 Notice.)

On November 10, 2022, Assignee of Record, Eugene Kim filed an Acknowledgment of Re-Assignment of Judgment to original Plaintiffs Albert Kamkar and James Shin.

On December 12, 2022, Plaintiffs Kamkar and Shin filed a late Opposition to the Motion. No reply has been filed.

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.)

Defendant seeks to set aside the default and default judgment entered against her on the grounds that the Court lacked personal jurisdiction due to lack of service and the Court has equitable powers to set aside default and default judgment. (Mot. p. 1.)

Although several Proofs of Service have been filed by Plaintiffs, the Court only evaluates the Second Amended Proof of Service filed on July 24, 2019, because all prior Proofs of Service contain deficiencies. On July 24, 2019, Plaintiffs filed the Second Amended Proof of Personal Service indicating that the First Amended Complaint was personally served on Defendant at 5037 Shipley Glen Dr., Los Angeles, CA 90042 at 1:35 p.m. and describing Defendant as “around 45-50 years old, her nationality is Latino, around 145-155 pounds.” (7-24-19 Proof of Service.) Service was effectuated by Elizabeth Shim, who is not a registered California process server, and thus, the Proof of Service does not establish a presumption affecting the burden of producing evidence under Evidence Code § 647. (Ibid.)

Defendant states that she was never served prior to September 4, 2022, and only learned of the lawsuit when she was served with a subpoena on that date. (Bhotiwihok ¶¶ 3-4.) She was not aware of the existence of the lawsuit and never spoke to the Plaintiff[1] or Plaintiff’s representatives about the case until September 4, 2022. (Ibid. at ¶ 5.)

Defendant further states that she lived at 5037 Shipley Glen Dr., Los Angeles, CA 90042 from May 2013 to December 2000. (Ibid. at ¶ 7.) She also did not receive the Default Packet, sent to her residence on December 4, 2019. (Ibid. at ¶ 8.) The Packet was also sent to her former attorney’s address at 225 South Lake Ave, Suite 200, Pasadena, CA 91101-3009; however, her attorney had stopped representing her at the end of 2017 and had retired in the same year. (Ibid., Ex. G.)

Furthermore, the Proof of Service indicates that Defendant was served at 1:35 p.m. on May 6, 2019, however, Defendant states that she was picking up her children from two different schools, located at different addresses in Altadena, and could not have returned home by 1:35 p.m. (Ibid. at ¶ 9.) Defendant has attached a copy of her children’s School Handbook indicating that on Mondays, as May 6, 2019, was a Monday, students attending Kindergarten through Third Grade are released at 1:30 p.m. and students attending Fourth through Eighth Grade are released at 1:50 p.m. (Ibid.; Ex. A at p. 13.) Defendant has also attached the routes and distances between Defendant’s home and her children’s schools, indicating that she could not have returned home by 1:35 p.m. (Ibid. at ¶¶ 11-12; Exs. B-D.) Defendant has also submitted her children’s attendance records showing that both of her children were at school on May 6, 2019. (Ibid. at ¶ 13, Ex. F.)

Moreover, Defendant states that her husband is an attorney at a law firm and submits proof that her husband made an entry into the law firm’s data entry system at 1:47 p.m. on May 6, 2019, demonstrating that he was physically at the firm at the time. (Ibid. at ¶ 15; Ex. E.) Defendant and her husband are the only individuals who could have picked up their children from school and in this case, Defendant’s husband was at his place of work at the time. (Ibid. at ¶ 16.)

Defendant also disputes the physical description entered on the Proof of Service. (Ibid. at ¶ 17.) She states that on May 6, 2019, she was 40 years old and weighed 128 pounds, not 45-50 years old, weighing 145-155 pounds. (Ibid.) Defendant is also Caucasian, not a Latina. (Ibid.)

Finally, Defendant disputes liability and states that “[t]here was an agreement to terminate the lease early for $8.700.00” and she found tenants to take over the lease. (Ibid. at ¶ 18.) Thus, she did not cause $22,600.00 in damages to Plaintiffs. (Ibid.) Defendant also explains that the lease agreement contained an arbitration provision that she did not have a chance to invoke . (Ibid. at ¶ 19.). Defendant has submitted a Proposed Answer along with the Motion. (Campbell Decl. ¶ 7, Ex. 6.)

Defendant’s husband, Michael Bhotiwihok, submits his own declaration in support of the Motion. He states that he is an attorney at a law firm and submits an email from the managing partner at his firm along with an entry into the firm’s data entry system at 1:47 p.m. on May 6, 2019, demonstrating that he was physically at the firm at the time. (Decl. Michael Bhotiwihok ¶ 3, Ex. A[2].) Defendant’s husband also states that he and his wife are the only ones who pick up their children and given that he was physically at the firm at 1:47 p.m. on May 6, 2019, he was unable to pick up their children. (Ibid. at ¶¶ 4, 6.)

Defendant argues that “[t]he proof of service is fatally defective and flawed” and given that Defendant was not served, the Court lacked personal jurisdiction to proceed with the case. (Mot. pp. 4-5.) Defendant adds that she was erroneously sued as Tricia Fix. (Ibid.)

Defendant also argues that she is entitled to relief under Code of Civil Procedure §§ 473(b) and 473.5. Although the motion was not filed with two years after entry of default judgment or 180 days after service of written notice of default or default judgment, the Court may rely on its equitable powers to set aside the default and default judgment. (Ibid. at p. 6.) Defendant has a meritorious case because she states that after the lease terminated early, she found new tenants for the property and thus, does not owe anything to Plaintiffs. (Ibid. at p. 7.) She had a satisfactory excuse for not responding to the lawsuit as she did not learn about it until September 4, 2022, and was diligent in filing the instant Motion once she did learn about the case. (Ibid.)

Finally, Defendant argues that the case should be dismissed pursuant to Code of Civil Procedure § 583.210(a) because the summons and complaint were not properly served within three years after the action was commenced. (Ibid. at p. 8.) If the Court does not dismiss the case, the Court should allow the case to be heard on its merits. (Ibid. at p. 9.)

Plaintiff submitted and served a late Opposition to the Motion on December 12, 2022, although the last day to submit an opposition was December 6, 2022, and December 1, 2022, in case of service by mail. The Opposition contains a joint declaration from Plaintiffs Shin and Kamkar stating that Defendant is a liar and asking the Court “to hold TRICIA FIX in contempt” or “issue a written order stating that perjury is a criminal matter.” (Shin and Kamkar Decl. ¶¶ 2-7.) Plaintiffs also attach email exchanges between Defendant, her former attorney, and Plaintiffs from 2016 and 2017, prior to the filing of the Complaint in this case. (Ibid. at ¶ 7, Ex. A.) Given that the Opposition was filed late, no reply was filed, and the Opposition does not set forth any argument or proof addressing service of the pleadings, the Court, in its discretion does not consider the Opposition. (Cal. Rules of Court, 3.1300(d).)

The Court finds that under Code of Civil Procedure §§ 473(b) 473.5, Defendant’s Motion was filed untimely. However, relying on its equitable powers, the Court has the authority to set aside the default and default judgment in the instant case as Defendant has submitted sufficient evidence to demonstrate that the judgment is void to due to improper service. The Court also finds that Defendant has shown that she has a meritorious defense and has filed a proposed Answer. Defendant has also provided sufficient evidence of a satisfactory excuse due to improper service and showed diligence in filing the instant Motion within approximately two months of learning about the case. Plaintiffs have not submitted any evidence to demonstrate that service was proper.

Accordingly, Defendant’s Motion to Set Aside/Vacate Default and Default Judgment is GRANTED.

Defendant further argues that the statutory period for service of process has run and the action cannot be further prosecuted. (CCP § 583.210). Since the action was filed on August 28, 2018, the time to serve expired August 28, 2021 unless tolling occurred. A plaintiff can escape this harsh consequence only by proving that grounds exist to toll the statutory period. (Paul v. Drost (1986) 186 Cal. App. 3d 1407, 1411; CCP § 583.240) The exceptions are: “

(a) the defendant was not amenable to the process of the court; (b) the prosecution of the action or proceedings in the action was stayed and the stay affected service; (c) the validity of the service was the subject of litigation by the parties; or (d) service, for any other reason, was impossible, impracticable or futile due to causes beyond the plaintiff’s control. Failure to discover relevant facts or evidence is not a cause beyond the plaintiff’s control . . . .

The first two exclusions are inapplicable. Nor do Plaintiffs gain any benefit from the exclusion for time during which the validity of service is being litigated. Defendant filed her motion to set aside the default judgment for lack of service on November 7, 2022, more than three years after commencement of the action. A statutory period cannot be tolled more than a year after it has already run.

In Dale v. ITT Life Ins. Co., 207 Cal. App. 3d 495, 502-03, the Court explained that the legislature made clear that any claimed impossibility, impracticability or futility of service must be “due to causes beyond the plaintiff’s control” and service is within the control of the plaintiff.

As noted above, this case was filed on August 28, 2018. Default was entered on July 24, 2019 and a default judgment was entered on January 10, 2020. Plaintiff then waited more than two years, until July 18, 2022, to issue an Order to Appear for Examination in an attempt to try to collect the judgment.

Like the Plaintiff in Dale, Plaintiffs did not give Defendant actual notice of the lawsuit. Once default was entered, Plaintiffs delayed considerably in attempting to obtain satisfaction of the judgment. If Plaintiffs had exercised reasonable diligence in prosecuting their case, the invalidity of service on Defendant could have been discovered before the statutory period had run. Because the circumstances making service “impracticable” were entirely within Plaintiffs’ control, there are no grounds for tolling the statutory period pursuant to CCP § 583.240. Accordingly, Plaintiff’s complaint is dismissed for failure to serve the summons and complaint within three years pursuant to CCP § 583.210.

Plaintiff’s complaint is DISMISSED for failure to serve the summons and complaint within three years pursuant to CCP § 583.210.

[1] Defendant incorrectly refers to the Plaintiffs as a single Plaintiff.

[2] Although Exhibit A is not attached, the email and data entry are attached to Tricia Bhotiwihok’s declaration as Exhibit F.