Judge: Lisa R. Jaskol, Case: 20STCV36181, Date: 2023-09-11 Tentative Ruling
Case Number: 20STCV36181 Hearing Date: September 11, 2023 Dept: 28
Having considered the moving, opposing and reply papers, the Court rules as follows.
BACKGROUND
On September 22, 2020, Plaintiff Donna Everton (“Plaintiff”) filed this action against Defendants Raymond Renaissance Surgery Center, LLC (“Surgery Center”), Khaled Tawansy, M.D., (“Tawansy”), and Does 1-100 for negligence.
On February 3, 2021, the clerk entered Surgery Center’s default.
On March 24, 2021, the clerk entered Tawansy’s default.
On June 15, 2023, Defendants filed a motion for equitable relief from default to be heard on September 11, 2023. On August 23, 2023, Plaintiff filed an opposition.[1] On September 1, 2023, Defendants filed a reply and an objection to Plaintiff's opposition.
No trial date is currently set.
PARTIES’ REQUESTS
Defendants request that the Court vacate their defaults.
Plaintiff requests that the Court deny the motion.
LEGAL STANDARD
A. Service of summons and complaint
“A summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served. Service of a summons in this manner is deemed complete at the time of such delivery. The date upon which personal delivery is made shall be entered on or affixed to the face of the copy of the summons at the time of its delivery. However, service of a summons without such date shall be valid and effective.” (Code Civ. Proc., § 415.10.)
Code of Civil Procedure section 415.20 provides in part:
“(a) In lieu of personal delivery of a copy of the summons and complaint to the person to be served as specified in Section 416.10, 416.20, 416.30, 416.40, or 416.50, a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address, other than a United States Postal Service post office box, with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. When service is effected by leaving a copy of the summons and complaint at a mailing address, it shall be left with a person at least 18 years of age, who shall be informed of the contents thereof. Service of a summons in this manner is deemed complete on the 10th day after the mailing.
“(b) If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing. . . .”
(Code Civ. Proc., § 415.20, subds. (a), (b).)
B. Motion for relief from default
The Court has statutory authority to set aside a judgment or order that is void as a matter of law. (L. Edmon and C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 5:484, p. 5-140 (Cal. Practice Guide), citing Code Civ. Proc., § 473, subd. (d).) Code of Civil Procedure section 473, subdivision (d) provides: “The court . . . may, on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc., § 473, subd. (d).) “A judgment may be void as a matter of law for many reasons, including: . . . Lack of or improper service of summons.” (Cal. Practice Guide, supra, ¶ 5:485, p. 5-140.)
In addition to statutory authority, “ ‘courts have the inherent authority to vacate a default and default judgment on equitable grounds such as extrinsic fraud or extrinsic mistake.’ ” (Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13, 29 (Kramer), quoting Bae v. T.D. Service Co. of Arizona (2016) 245 Cal.App.4th 89, 97.) “A party seeking relief under the court's equitable powers must satisfy the elements of a ‘stringent three-pronged test’: (1) a satisfactory excuse for not presenting a defense, (2) a meritorious defense, and (3) diligence in seeking to set aside the default.” (Ibid., quoting Rappleyea v. Campbell (1994) 8 Cal.4th 975, 982-983 (Rappleyea).)
“A defendant has a satisfactory excuse if it shows that an extrinsic fraud or extrinsic mistake occurred.” (Kramer, supra, 56 Cal.App.5th at p. 29, citing Rappleyea, supra, 8 Cal.4th at pp. 982-983.) “[E]xtrinsic fraud and extrinsic mistake are unavailable when a party's own negligence allows the fraud or mistake to occur.” (Ibid. [defendants could not establish excuse where they knew of the lawsuit but chose not to participate in it].)
“ ‘Extrinsic mistake occurs “when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits.” [Citation.] In contrast with extrinsic fraud, extrinsic mistake exists when the ground of relief is not so much the fraud or other misconduct of one of the parties as it is the excusable neglect of the defaulting party to appear and present his claim or defense. . . . Relief will be denied, however, if the complaining party's negligence permitted the fraud to be practiced or the mistake to occur.’ ” (Kramer, supra, 56 Cal.App.5th at p. 30, quoting Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 47 (Manson).)
“ ‘ “Extrinsic fraud occurs when a party is deprived of the opportunity to present his claim or defense to the court; where he was kept ignorant or, other than from his own negligence, fraudulently prevented from fully participating in the proceeding. [Citation.] ... The essence of extrinsic fraud is one party's preventing the other from having his day in court.” [Citations.] Extrinsic fraud only arises when one party has in some way fraudulently been prevented from presenting his or her claim or defense.’ ” (Kramer, supra, 56 Cal.App.5th at p. 36, quoting Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1300.)
“[A] misrepresentation alone is not enough to warrant equitable relief. Among other things, ‘[r]elief will be denied ... if the complaining party's negligence permitted the fraud to be practiced or the mistake to occur.’ ” (Kramer, supra, 56 Cal.App.5th at p. 36, quoting Manson, supra, 176 Cal.App.4th at p. 47.)
DISCUSSION
A. Tawansy
1. The default is void under Code of Civil Procedure
section 473, subdivision (d), due to improper service of the summons and
complaint
Tawansy asserts that the Court should vacate the entry of default because Plaintiff did not properly serve the complaint and summons on him. According to Tawansy, on or about January 5, 2021, Plaintiff purported to serve Tawansy via substituted service by leaving the complaint and summons with Mario Rodriguez (“Rodriguez”) at 110 Patrician Way, Pasadena, CA 91105 (“the Pasadena location”). Tawansy owns the Pasadena location but has not lived there since approximately 2005. Tawansy does not receive mail at the Pasadena location. Rodriguez is Tawansy’s long-time gardener who occasionally stays at the Pasadena location to accomplish his duties, which include “handyman” work. Tawansy never received documents from Rodriguez.
In response, Plaintiff argues that she sent “numerous requests and notices to both Defendants that should have alerted them to the fact there was ongoing litigation.” (Opposition p. 9.) Plaintiff does not show, however, that Tawansy received these requests and notices.
Plaintiff also argues the substituted service on Rodriguez was proper. However, Code of Civil Procedure section 415.20, subdivision (b), requires that the summons and complaint be left “in the presence of a competent member of the household . . . .” (Code Civ. Proc., § 415.20, subd. (b).) Plaintiff has not shown that Rodriguez fits this description. (Compare Bein v. Brechtel-Jochim Group, Inc. (1992) 6 Cal.App.4th 1387, 1393 [gate guard at gated community was a “competent member of the household” where appellants “authorized the guard to control access to them and their residence”].)
Plaintiff argues that, due to the relationship between Tawansy and Surgery Center, Plaintiff’s service of the summons and complaint on Surgery Center should have placed Tawansy on notice about the lawsuit. The argument is based on speculation. Plaintiff has no evidence that Tawansy was aware of the lawsuit before learning of the default in April 2023.
The Court vacates the default and quashes service of the summons and complaint on Tawansy.
2. Equitable relief from default
a. Excuse
Even if Tawansy's default was not void under Code of Civil Procedure section 473, subdivision (d), Tawansy would be entitled to equitable relief from default. He has established the first element of excuse by showing that an extrinsic mistake unfairly cost him a hearing on the merits. (See Kramer, supra, 56 Cal.App.5th at p. 30.) Tawansy has submitted a declaration stating that he was experiencing serious personal medical and legal problems unrelated to this case beginning in December 2020 that prevented him from attending to anything other than his health and his patients’ care. (Tawansy Dec. ¶¶ 3-4.) Tawansy’s failure to respond to the litigation therefore was the result of circumstances extrinsic to this case.
Plaintiff argues that Tawansy was negligent because he did not check his mail. However, due to the extrinsic circumstances Tawansy has described and his lack of knowledge about the lawsuit, the failure to check mail constitutes excusable neglect.
b. Meritorious defense
Tawansy argues he has a meritorious defense to Plaintiff’s medical negligence action because Plaintiff did not suffer damages as a result of any negligence alleged in her complaint. According to Tawansy, when Defendants learned that Plaintiff was complaining about her vision, they asked her to come in for an appointment and even offered to arrange private transportation for her. However, Plaintiff did nothing and did not attend follow-up appointments with Tawansy. (See Tawansy Dec. ¶ 13.)
Plaintiff’s opposition does not appear to address whether Tawansy has a meritorious defense.
The Court finds that Tawansy has raised a potentially meritorious defense based on lack of causation, comparative fault, or failure to mitigate damages.
c. Diligence
Tawansy contends that he acted diligently once he learned about the default. He learned about the default in April 2023. (See Exh. G; see Motion p. 5 [Defendants learned of the default “on or about April 11, 2023”].) Defendants retained counsel about a week later. (See Exh. G.) In a letter dated April 21, 2023, Defendants’ counsel asked Plaintiff to agree to vacate the defaults. (Exh. G.) Plaintiff and Tawansy spoke by phone on May 10, 2023 in an unsuccessful attempt to reach an informal resolution. (See Exh. G.) On June 15, 2023, Defendants filed their motion to vacate the default, including a proposed answer.
Plaintiff does not dispute these facts but asserts that Tawansy did not act diligently because he waited “almost two months” to file his motion. The Court finds a delay of almost two months, during which Tawansy and his counsel presumably researched and prepared the motion, does not defeat Tawansy’s showing of diligence.
Accordingly, the Court grants Tawansy’s motion and vacates the default.
B. Surgery Center
Surgery Center does not dispute the validity of Plaintiff’s service of the summons and complaint. However, Surgery Center asks the Court to exercise its equitable authority to vacate the default entered against it.
Based on the evidence discussed above regarding Tawansy, Surgery Center has established a potentially meritorious defense and diligence. Surgery Center, however, must make its own showing of excuse.
Surgery Center argues that, due to a breakdown in communications in Surgery Center’s practice, the case was never picked up for a defense by any attorneys. Noel Cabezzas (“Cabezzas”), the registered agent for service of process for Surgery Center, submitted a declaration stating that in or about December 2020, he signed a notice and acknowledgment of receipt of this lawsuit on behalf of Surgery Center. He then handed the documents off to Surgery Center’s legal team to handle the response and to tender the claim to insurance according to Surgery Center’s standard procedure. The manager in charge of these matters at Surgery Center at the time was Melissa, who was later terminated in or about September 2022 for wrongdoing including theft and deception. For reasons unknown to Cabezzas, the claim was never picked up and no response to the complaint was ever filed. (Cabezzas Dec. ¶¶ 1-2.)
Surgery Center argues that, subsequently, Plaintiff served documents on unauthorized front desk attendants and in the regular mail to Surgery Center’s medical office rather than to its registered agent, so the case continued to go unnoticed by the right people. The case, Surgery Center argues, slipped through the cracks.
In addition, Surgery Center argues that Tawansy’s focus on his health and patient care due to his medical and legal problems contributed to Surgery Center’s difficulty in responding to the complaint because Tawansy was in charge of the practice legal affairs.
The Court finds that Surgery Center has established an excuse due to extrinsic mistake. Therefore, the Court grants Surgery Center’s motion and vacates the default.
CONCLUSION
The Court GRANTS the motion of Defendant Khaled Tawansy, M.D. for relief from entry of default. The Court vacates the default entered against Defendant Khaled Tawansy, M.D. and quashes service of the summons and complaint on him.
The
Court GRANTS the motion of Defendant Raymond Renaissance Surgery Center, LLC for
relief from entry of default. The Court
vacates the default entered against Defendant Raymond Renaissance Surgery
Center, LLC.
Moving parties are ordered to give notice of this ruling.
Moving
parties are ordered to file the proof of service of this ruling with the Court
within five days.
1] The Court
sustains Defendants’ objection to Plaintiff’s opposition, which exceeds the
permissible page limitation. The Court strikes
all pages of the opposition after the fifteenth page of briefing following the
table of contents and table of authorities.