Judge Lee W. Tsao, Case 22NWCV00446 2023-01-31 Tentative Ruling

Judge: Lee W. Tsao, Case: 22NWCV00446, Date: 2023-01-31 Tentative Ruling

Case Number: 22NWCV00446 Hearing Date: January 31, 2023 Dept: C

3D5 AXIS ENGINEERING, INC. v. PRECISION FORGINT DIES, INC., et al.

CASE NO.: 22NWCV00185

HEARING: 1/31/23 @ 10:30 AM

TENTATIVE RULING

Defendants Precision Forging Dies, Inc. and Dan Kloss motion to set aside entry of default and default judgment is GRANTED. Defendants are ORDERED to file and serve their Answers by February 1, 2023.

Moving Parties to give NOTICE.

Defendants Precision Forging Dies, Inc. and Dan Kloss move to set aside entry of default pursuant to CCP § 473.

Merits

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. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. (CCP § 473(b).) “The court may... on motion of either party after notice to the other party, set aside any void judgment or order.” (CCP § 473(d).)) Court may set aside default judgment valid on its face but void as a matter of law due to improper service. (Ellard v. Conway (2001) 94 Cal.App.4^th 540, 544.) The burden of proof on such a motion is on the moving party who must establish his position by a preponderance of the evidence. (Luz v. Lopes (1960) 55 Cal.2d 54, 62.)

Defaults were entered against Defendants on October 5, 2022.

In his declaration, Defendant Kloss states he is Precision’s agent for service of process. He was in his home country of Romania from January 2022 through September 2022. He was thus outside the U.S. at the time substitute service was allegedly made at his place of business (in June 2022). (Kloss Decl., ¶ 2.) Kloss – Precision’s sole shareholder, officer and director – never received a copy of the Summons and Complaint. (Id., ¶ 2.) Kloss did not become aware of the present suit until he received a package of documents from Plaintiff’s counsel on or about October 2, 2022. (Id., ¶ 3.)

Defendants are represented by Attorney Ferruci, who declares that he corresponded with Plaintiff’s counsel, but Plaintiff was not willing to set aside the default. (Ferruci Decl., ¶ 4.)

As Defendant has made a timely motion to set aside entry of default, the court finds that justice favors resolution on the merits.

Accordingly, the motion is GRANTED. Defendants are ORDERED to file and serve their Answers by February 1, 2023.

The court discloses to the parties that on January 18, 2023, it heard and ruled upon Defendant Kloss’s motion to set aside entry of default in Signature Financial v. Dan Kloss (Super. Ct. Los Angeles County, 2023, No. 22NWCV00181).