Judge Lee W. Tsao, Case Number: 22NWCV00150, Date: 2023-09-14 Tentative Ruling

Judge: Lee W. Tsao, Case: 22NWCV00150, Date: 2023-09-14 Tentative Ruling

Case Number: 22NWCV00150 Hearing Date: March 19, 2024 Dept: C

Lorraine L. Cota vs Marco Antonio Martin, et al.

Case No.: 22NWCV00150

Hearing Date: March 12, 2024 @ 10:30 AM

Tentative Ruling

Defendant Michelle Toscano’s Motion to Have Entry of Default Set Aside is DENIED.

Plaintiff to give notice.

Background

On March 3, 2022, Plaintiff Lorraine Cota filed a complaint against Defendants Marco Antonio Martin (“Martin”), 365 Kapital, LLC (“365”), My Rights Inc. (“MRI”), Rinaldo Rios (“Rios”), Excellence RE Real Estate. Inc. (“ERRE”), and Does 1-50, inclusive, alleging causes of action for 1) financial elder abuse, 2) breach of fiduciary duty, 3) actual fraud, 4) constructive fraud, 5) conversion, 6) recovery of payment from unlicensed contractor, and 7) money had and received.

Default was entered against Defendants Rios and ERRE on April 15, 2022, and against Martin, 365 and MRI on February 23, 2023. During the investigation for the Default prove-up judgment, it was discovered that Defendant Toscano was a recipient of funds, as the girlfriend of Defendant Martin.

On July 14, 2023, the Complaint was amended to name Defendant Toscano as DOE 1. (Skillings Decl., Exhibit 1.) Defendant Toscano then failed to respond to the Complaint. Default was entered against Defendant Toscano on September 6, 2023, with a prove-up hearing taking place on December 18, 2023.

Defendant Toscano moves to set aside default on the grounds that service of the Summons did not result in actual notice, she lacked actual notice in time to raise the defect before the default was entered, and the default and default judgment are void. (CCP § 473.5.) She also seeks equitable relief on the grounds of extrinsic fraud and mistake. (CCP § 473(d).)

Relief under CCP § 473.5(a)

When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, the party may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action (Code Civ. Proc. § 473.5(a)).

On a finding by the court that the motion was made within the two year time period permitted by Code of Civil Procedure Section 473.5(a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action (Code Civ. Proc. § 473.5(c); Goya v. P.E.R.U. Enterprises (1978) 87 Cal. App. 3d 886, 890–891.).

Whether or not relief should be granted under Code of Civil Procedure Section 473.5 is a matter within the discretion of the trial court. (Brockman v. Wagenbach (1957) 152 Cal. App. 2d 603, 611.) Unless inexcusable neglect is clear, the policy favoring trial on the merits prevails over the general rule of deference to the trial court’s exercise of discretion, and doubts are resolved in favor of the application for relief from default. (Tunis v. Barrow (1986) 184 Cal. App. 3d 1069, 1079.)

““A judgment or order is said to be void on its face when the invalidity is apparent upon an inspection of the judgment-roll.” ’ [Citation.] This inquiry, however, ‘does not hinge on evidence: A void judgment’s invalidity appears on the face of the record.’ [Citation.]” (Kremerman v. White, (2021) 71 Cal.App.5th 358, 370.)

Here, Defendant Toscano argues the Summons and Complaint were not served on her, and they were not left with a person at least 18 years of age. Defendant Toscano argues Ms. Rosales, a 16-year old babysitter, and Defendant Toscano’s 8-year old son were the only ones at home when the server went to Defendant Toscano’s home, and the door was not opened to the server. Defendant TOSCANO returned the documents left outside her home to Plaintiff’s attorney and notified him of the lack of service. Accordingly, Defendant Toscano argues that the Default should be voided.

In Opposition, Plaintiff contends that there is no merit to Defendant Toscano’s arguments. Plaintiff offers the Proof of Service, which states that the Summons Complaint, Amendment to Complaint and other related documents were personally served on Michelle Denise Toscano (DOE-1), at 3811 Marber Ave., Long Beach, CA on July 27, 2023 at 7:13 p.m. The proof of service is signed under penalty of perjury by process server Tamar Ravid. The proof of service was electronically filed with the Court on August 1, 2023. (Skillings Decl., Exhibit 2.) Further, the Declaration of Due Diligence states: “I attempted service on said subject at the address as per above. An unknown Hispanic Female answered the' door, along with her was a minor child. I asked if the subiect was in and she informed me that she was Michelle Toscano. (female/hisp/5'2"/110lbs, brown hair/brown eyes/approx. 45yoa), she accepted the documents.” (Skillings Decl., Exhibit 5.)

Default was entered against Defendant Michelle Toscano on September 6, 2023. The Motion to Set Aside/Vacate Default was entered on February 20, 2024. The motion is timely, as it was brought within the two-year window.

Having examined the proof of service the Court finds it to be valid on its face. Therefore, CCP § 473.5 is not a ground for granting relief.

Equitable Grounds

Alternatively, Defendant argues the Court may set aside the default and default judgment based on extrinsic fraud or mistake. “Apart from any statute, courts have the inherent authority to vacate a default and default judgment on equitable grounds such as extrinsic fraud or extrinsic mistake.” (Bae v. T.D. Service Co. of Arizona (2016) 245 Cal.App.4th 89, 97.) A motion seeking such equitable relief “‘may be brought on such ground even though the statutory period [for relief under Code of Civil Procedure section 473, subdivision (b)] has run.’ [Citation.]” (Ibid.) Unlike motions to vacate under section 473, where any doubts in applying section 473 must be resolved in favor of the party seeking relief, “[w]hen a default judgment has been obtained, equitable relief may be given only in exceptional circumstances.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.)

Extrinsic mistake is “a term broadly applied when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits.” (Rappleyea, supra, 8 Cal.4th at p. 981.) Relief on equitable grounds is subject to a three-part test: (1) a meritorious defense; (2) a satisfactory excuse for not presenting a defense sooner; and (3) diligence upon learning of default. (Stiles v. Wallis (1983) 147 Cal.App.3d 1143, 1147-1148.) Defendant has not attached a proposed Answer and therefore has not made a showing that there is a meritorious defense. Moreover, Defendant has not demonstrated a satisfactory excuse or diligence. Therefore, relief is not warranted on equitable grounds.

Accordingly, Defendant Toscano’s motion to set aside default on the grounds asserted is DENIED.