Judge: Latrice A. G. Byrdsong, Case: 21STLC06375, Date: 2023-09-28 Tentative Ruling

Case Number: 21STLC06375    Hearing Date: September 28, 2023    Dept: 25

Saucedo v. Carcamo, et al.

21STLC06375

ANALYSIS:

 

I.                Background

 

            Plaintiff hired Defendants Erick Carcamo, Baily Shugart and All Black Form to produce design plans for the development of two lots owned by Plaintiff.  Plaintiff alleges Defendants’ design plans were completely unsuitable for the project, because they were incomplete and did not conform to the requirements of hillside construction design plans or blue prints necessary for development.  Defendants ultimately withdrew from the project when Plaintiff demanded that they redo the designs to conform to applicable requirements.  Defendants have refused to return the money paid to them under their agreement with Plaintiff.  Plaintiff filed this action for consequential damages in the amount of $12,000 and a refund of the initial contract fee of $4500. 

 

            Default was entered against Defendants Carcamo and Shugart on 12-20-21.  Defendant All Black Form was dismissed on 5-4-23.  Default judgment was entered against Defendants Carcamo and Shugart on 5-10-23 in the amount of $8,177.04. 

 

COMPLAINT FILED ON 9-1-21

1st c/a—breach of written contract

2nd c/a—conversion

3rd c/a—unfair business practices (B&PC §17200)

 

II.              Legal Standard

 

            “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” CCP §473(b).

 

            CCP §473(b) is not a “get-out-of-jail-free card for parties who later come to regret past inaction or sitting on their rights.”  (McClain v. Kissler (2019) 39 Cal.App.5th 399, 414.)  “It is the duty of every party desiring to resist an action or to participate in a judicial proceeding to take timely and adequate steps to retain counsel or to act in his own person to avoid an undesirable judgment. Unless in arranging for his defense he shows that he has exercised such reasonable diligence as a man of ordinary prudence usually bestows upon important business his motion for relief under section 473 will be denied. Courts neither act as guardians for incompetent parties nor for those who are grossly careless of their own affairs.”  (Id. at 415.)

 

            However, “when the party in default moves promptly for relief, and the party opposing the motion will not suffer prejudice is granted, very slight evidence is necessary to have default set aside.”  (Shapell Socal Rental Properties, LLC v. Chico’s FAS, Inc. (2022) 84 Cal.App.5th 166, 218 (trial court erred in denying tenant relief from default where plaintiff’s counsel engaged in ethical breaches, complaint was served and default obtained in a manner intended to keep defendant in the “dark about what was going on,” absolutely no prejudice would have resulted from relief from default judgment and trial court’s credibility determinations were not supported by the record.)  Only a weak showing is necessary and any doubts must be resolved in favor o granting the defendant relief.  (Id.) 

 

III.            Objections to Evidence

 

Plaintiff’s Objections to Evidence—SUSTAIN all objections  

           

IV.            Discussion

 

A.  Motion is untimely

 

Pursuant to CCP §473(b), discretionary relief must be sought within a reasonable time, in no case exceeding six months after the judgment, dismissal, order or other proceeding taken against a defendant. The six-month time limit for granting statutory relief is jurisdictional and the court may not consider a motion for relief made after that period has elapsed.  (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.)  “The general rule is that the six-month period within which to bring a motion to vacate under section 473 runs from the date of the default and not from the judgment taken thereafter. The reason for the rule is that vacation of the judgment alone ordinarily would constitute an idle act; if the judgment were vacated the default would remain intact and permit immediate entry of another judgment giving the plaintiff the relief to which his complaint entitles him.”  (Rutan v. Summit Sports, Inc. (1985) 173 Cal.App.3d 965, 970; see also Iver, supra, 176 Cal.App.4th at 42.)

 

“[B]ecause it could not set aside the default, it also could not set aside the default judgment under Code of Civil Procedure section 473, because that would be an idle act. If the judgment were vacated, it would be the duty of the court immediately to render another judgment of like effect, and the defendants, still being in default, could not be heard in opposition thereto.”  Pulte Homes Corp. v. Williams Mechanical, Inc. (2016) 2 Cal.App.5th 267, 273 (trial court properly denied relief from default and default judgment per discretionary provision of CCP §473(b) where motion for relief was filed more than six months after entry of default and less than six months after default judgment).

 

The applicable deadline is measured from the date of entry of default, not default judgment.  As discussed in Rutan and Pulte Homes, the Court’s lack of jurisdiction to set aside default pursuant to CCP §473(b) precludes the Court from considering a request to set aside the default judgment, even if the motion was filed less than six months from entry of the default judgment.  (Pulte Homes Corp., supra, 2 Cal.App.5th at 273; Rutan, supra, 173 Cal.App.3d at 970.)

 

Defendants’ motion to vacate default is untimely.  Default was entered against Defendants on 12-20-21.  The motion for relief was filed on 7-12-23, 18 months later.  The Court lacks jurisdiction to grant this motion for relief pursuant to CCP §473(b), because it is untimely.  (Rutan, supra, 173 Cal.App.3d at 970.)

 

B.  Defendants establish that they were never properly served with the complaint and summons but do not seek relief under CCP §473(d)

 

Defendants Carcamo and Shugart move for relief from default tand default judgment based on the discretionary relief provision of CCP §437(b) based on mistake, inadvertence and excusable neglect.  At all times, Defendants have been self-represented.  However, “mere self-representation is not a ground for exceptionally lenient treatment.”  (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984.)

 

According to Defendants they did not respond to the complaint, because they did not believe that Plaintiff properly served them.  Defendants argue they were never personally served and substitute service was rendered at Woodbury University.  Shugart was no longer employeed at Woodbury University when substitute service was allegedly rendered.  (Motion, Carcamo and Shugart Dec., 4:20-23.)  Carcamo admits he was employed by Woodbury at the time substitute service was rendered. (Id. at 4:25-27-5:1-2.)  However, he was on parental leave at the time service was rendered.  (Id. at 5:1-2.)

 

Defendants’ testimony regarding what Ana Valencia said about accepting the complaint and summons is inadmissible.  Valencia is the person listed on the POS who accepted the complaint and summons when service was rendered on Defendants at Woodbury. 

 

A valid proof of service gives rise to a rebuttable presumption of valid service.  (Dill v. Berquist Const. Co., Inc. (1994) 24 Cal.App.4th 1426, 1439, fn 12.)  Plaintiff’s POS indicates substitute service on Defendants at their usual place of business.  (Opposition, Exs. 1 and 2.) Carcamo and Shugart submit sufficient evidence rebutting the presumption of proper substitute service. 

 

Carcamo admits he was employed at Woodbury at the time of service. However, given that Carcamo was on parental leave, Woodbury was not his “usual place of business” at the time.  Substitute service can only be rendered at defendant’s dwelling house (“usual place of abode”), usual place of business or usual mailing address.  (CCP §415.20(b).) 

 

Shugart testifies that she was no longer employed at Woodbury when service was rendered.  Woodbury was therefore not her usual place of business under CCP §415.20(b).

 

Defendants were therefore never properly served with the complaint and summons.  The Court never acquired jurisdiction over them and Defendants were never obligated to respond.  A defendant is under no duty to respond in any way to a defectively served summons. It makes no difference that defendant had actual knowledge of the action. Such knowledge does not dispense with statutory requirements for service of summons.  (Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466; Slaughter v. Legal Process & Courier Service (1984) 162 Cal.App.3d 1236, 1251 (requirement of notice "is not satisfied by actual knowledge without notification conforming to the statutory requirements”).)

 

Based on Defendants’ evidence, the default and default judgment were therefore void ab initio.  Defendants did not, however, move for relief from default and default judgment based on CCP §473(d), “void judgment or order,” nor may the Court grant such relief sua sponte:  “The court…may, on motion of either party after notice to the other party, set aside any void judgment or order.”  (CCP §473(d).)  If Defendants choose to move for relief based on CCP §473(d), such a motion is subject to a two-year deadline measured from the date of entry of default judgment, despite the absence of an explicit statutory deadline in CCP §473(d).  (Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1121-1122 (process server served wrong person); 8 Witkin, Cal. Proc. (6th ed. 2022), Attack, §216; Judges Benchbook: Civil Proceedings—After Trial §§ 1.42, 3.11.)

 

V.              Conclusion & Order

 

Defendants Carcamo and Shugart’s Motion to Set Aside Default and Default Judgment is DENIED pursuant to CCP §473(b) as untimely.  The motion for discretionary relief was filed on 7/12/23, more than six months after entry of default on 12/20/21. 

 

Moving party is ordered to give notice.