Judge Lee W. Tsao, Case Number: 22NWCV00340, Date: 2023-12-22 Tentative Ruling

Judge: Lee W. Tsao, Case: 22NWCV00340, Date: 2023-12-22 Tentative Ruling

Case Number: 22NWCV00340 Hearing Date: February 13, 2024 Dept: C

Abhaijeet Singh, et al. vs Palm Vista, LLC, et al.

Case No.: 22NWCV00340

Hearing Date: February 13, 2024 @ 9:30 AM

Tentative Ruling

Defendant Jonathan Gough’s Motion to Have Entry of Default Set Aside is DENIED.

Plaintiff to give notice.

Background

This action relates to a Grant Agreement with the City of Bellflower, California for the purpose of developing the real property commonly known as the Palm Vista Mobile Home Park.

Defendant Jonathan Gough (“Defendant”) was a manager and member of Defendants Palm Vista LLC and Palm Vista Community LLC. Plaintiffs are owners of manufactured homes within the Palm Vista Mobile Home Park.

The Complaint alleges, among other things, that Defendants formed a new entity identified as Defendant Palm Vista Community, LLC to avoid paying franchise taxes to the State of California.

Request for Judicial Notice

1. Proof of Service of Summons, Complaint, Civil Case Cover Sheet, Exhibits “A” through “Z”, Civil Case Cover Sheet Addendum and Statement of Location, Notice of Case Assignment –Unlimited Civil Case, Alternative Dispute Resolution (ADR) Information Package, Notice of Case Management Conference, and Certificate of Mailing.

The Court does not have to take judicial notice of materials in its own case file. Therefore, the Court declines to take Judicial Notice.

2. Request for Entry of Default as to Defendant JONAHAN W. GOUGH, an individual (“Jonathan”), entered on August 23, 2022 by the Clerk.

The Court does not have to take judicial notice of materials in its own case file. Therefore, the Court declines to take Judicial Notice.

3. Certified copy of the most recent Statement of Information for Defendant PALM VISTA, LLC, a California limited liability company (“Palm Vista”), filed with the California Secretary of State on September 30, 2021.

The Court takes Judicial Notice under Cal. Evid. Code § 452(c) given that this is a public mandatory filing with the California Secretary of State.

4. Certified copy of the most recent Statement of Information for Defendant PALM VISTA COMMUNITY A LIMITED LIABILITY COMPANY, a California limited liability company (“Palm Vista Community”), filed with the California Secretary of State on February 8, 2021.

The Court takes Judicial Notice under Cal. Evid. Code § 452(c) given that this is a public mandatory filing with the California Secretary of State.

Legal Standard

“‘A summons is the process by which a court acquires personal jurisdiction over a defendant in a civil action’ [citation], and a defendant has an absolute right to demand that process be issued against him in a manner prescribed by law.” (Mannesmann DeMag, Ltd. v. Superior Court¿(1985) 172 Cal.App.3d 1118, 1122.) “Constitutional due process requirements are satisfied where the form of service provided and employed is¿reasonably¿calculated¿to give a litigant actual notice of the proceedings and an opportunity to¿be heard.” (Crescendo Corp. v. Shelted, Inc.¿(1968) 267 Cal.App.2d 209, 213.) “‘[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.] Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. [Citation.]’” (Ellard v. Conway¿(2001) 94 Cal.App.4th 540, 544.)

Discussion

Defendant Jonathan Gough moves to set aside the default judgment entered against him on August 23, 2023 pursuant to CCP § 473.5.

Plaintiff submits proof of personal service upon Defendant Gough on June 14, 2022, at 4:45 p.m. by Deputy Johnny B. James of the Los Angeles County Sheriff’s Office at 262 Argonne Avenue, Long Beach, California 90803. (Proof Service, filed June 20, 2022; Stark Decl., Ex. A.) Service was made at that address because it is listed as the address for Defendant Gough in his capacity as agent for Defendant Palm Vista. (Stark Decl., ¶ 6.)

Defendant Gough argues he was not personally served notice and he did not have actual notice in time to defend the action. Defendant Gough declares he did not reside at the address where he was purportedly served. (Gough Decl., ¶¶ C and D.) Defendant maintains that the Argonne Avenue address is where his grandparents live. (Gough Decl., ¶ H.) Defendant contends he was not given actual notice of the lawsuit until January 23, 2023 when a co-worker discovered the action through a random internet search. (Gough Decl., ¶ J.)

“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, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. 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.” (CCP § 473.5(a) (emphasis added).)

Here, Request for Entry of Default against Defendant Gough was filed on August 22, 2022, and notice was served on the same date. Default Judgment was entered on August 23, 2022. Defendant’s Motion to Set Aside Default was not filed until November 16, 2023, more than 14 months after he was served notice of default. Therefore, Defendant’s motion is untimely.

The Court may set aside any void judgment or order at any time. (Code Civ. Proc., § 473, subd. (d); Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1249.) ““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.)

Having examined the proof of service, the Court finds it to be valid on its face.

Further, although Defendant Jonathan Gough argues that he was not living at the address at the time of service, had COVID-19 during the relevant times, this evidence is extrinsic. “If the invalidity can be shown only through extrinsic evidence, such as declarations or testimony, the order/judgment is not void on its face. [Citation.]” (Kremerman v. White, supra, 71 Cal.App.5th at p. 370.)

Accordingly, Defendant Jonathan Gough’s Motion to Set Aside Default is DENIED.