Judge: Lisa R. Jaskol, Case: BC706959, Date: 2023-11-07 Tentative Ruling
Case Number: BC706959 Hearing Date: November 7, 2023 Dept: 28
Having considered the moving and opposing papers, the Court rules as follows.
BACKGROUND
On May 8, 2018, Plaintiff Sonia Ruth Fuentes de Gomez (“Plaintiff”) filed this action against Defendants Guadalupe A. Dagnino (“Guadalupe Dagnino”), Octavio Lugo Dagnino (“Octavio Dagnino”), Daniel Dagnido (“Daniel Dagnido”) and Does 1 to 20 for negligence, strict liability, and premises liability.
On November 18, 2019, the Court dismissed the action without prejudice under Code of Civil Procedure section 581, subdivision (b)(3). On March 23, 2020, the Court granted Plaintiff’s ex parte application to reinstate the case.
On December 4, 2020, the Court again dismissed the case without prejudice. On May 27, 2021, the Court granted Plaintiff’s ex parte application to reinstate the case.
On August 6, 2021, the clerk dismissed the Doe defendants without prejudice.
On August 17, 2021, the Court entered Daniel Dagnino’s default. On December 2, 2021, the Court vacated the default because the request for default was for “Daniel Dagnino” and not for the named Defendant Daniel Dagnido.
On September 8, 2021, the clerk entered Guadalupe Dagnino’s default.
On January 28, 2022, the clerk entered Octavio Dagnino’s default.
In July and August 2022, Plaintiff filed statements of damages.
On September 20, 2022, Plaintiff amended the complaint to substitute the true name of Defendant Daniel Dagnino (“Daniel Dagnino”) in place of Daniel Dagnido.
On October 5, 2022, the Court dismissed Daniel Dagnido without prejudice at Plaintiff’s request.
On November 9, 2022, the clerk entered Daniel Dagnino’s default.
On May 16, 2023, the Court denied the ex parte application to set aside the defaults of Defendants Daniel Dagnino and Guadalupe Dagnino on the ground that a noticed motion was required.
On May 22, 2023, the clerk dismissed Octavio Dagnino without prejudice at Plaintiff’s request.
On October 18, 2023, Guadalupe Dagnino and Daniel Dagnino (“Defendants”) filed a motion to vacate default to be heard on November 7, 2023. On October 26, 2023, Plaintiff filed an 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
Code of Civil Procedure section 473.5 provides:
“(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, 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.
“(b) A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.
“(c) Upon a finding by the court that the motion was made within the period permitted by subdivision (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 of Civil Procedure section 473, subdivision (b), provides in part:
“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. . . .”
(Code Civ. Proc., § 473, subd. (b).)
DISCUSSION
A. Service of summons, complaint, and statement of damages
Defendants argue they were never served with the summons, complaint, and statement of damages.
1. Guadalupe Dagnino
On March 13, 2020, Plaintiff filed a proof of service showing personal service on Guadalupe Dagnino of a statement of damages on March 11, 2020.
On August 11, 2022, Plaintiff filed a statement of damages sought against Guadalupe Dagnino.
2. Daniel Dagnino
On May 6, 2019, Plaintiff filed a proof of service showing substituted service on Daniel “Dagnido” of the summons and complaint on May 3, 2019.
On March 13, 2020, Plaintiff filed a proof of service showing substituted service on Daniel “Dagnido” of a statement of damages on March 11, 2020.
On June 28, 2022, Plaintiff filed a proof of service showing personal service on Daniel “Dagnido” of a summons, complaint, statement of damages, and amendment to complaint naming Daniel Dagnino on June 27, 2022.
On July 13, 2022, Plaintiff filed a statement of damages sought against Daniel Dagnino.
On October 10, 2022, Plaintiff filed a proof of service showing personal service on Daniel “Dagnido” of a summons, complaint, statement of damages, and amendment to complaint naming Daniel Dagnino on October 5, 2022.
On October 19, 2022, Plaintiff filed an amended proof of service showing personal service on Daniel Dagnino of a summons, complaint, statement of damages, and amendment to complaint naming Daniel Dagnino on October 5, 2022.
3. Defendants have not rebutted the presumption of proper service
“Evidence Code section 647 provides that a registered process server's declaration of service establishes a presumption that the facts stated in the declaration are true.” (Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750.)
Defendants have identified no defects in the proofs of service on Guadalupe Dagnino and the October 19, 2022 amended proof of service on Daniel Dagnino listed above. Therefore, the Court presumes the facts stated in the registered process servers’ declarations are true.
Defendants were required to rebut the presumption of proper service arising from the process servers’ declarations with evidence that they were not so served. (See Rodriguez, supra, 236 Cal.App.4th at p. 750.) Defendants have submitted declarations stating they did not receive service of the case documents until April 26, 2023 and did not know about the lawsuit before that date.
Defendants’ declarations do not rebut the presumption of proper service. The Court finds that Defendants were properly served with the summons, complaint, and statement of damages before their defaults were entered.
B. “Actual notice” of the lawsuit
A motion to set aside a default under Code of Civil Procedure section 473.5 must be filed within 180 days after service of written notice of entry of the default. (Code Civ. Proc., § 473.5, subd. (a).) The record does not contain written notices of entry of the defaults against Defendants. Therefore, the motion is timely.
Defendants argue the Court should grant relief under Code of Civil Procedure section 473.5 because they lacked “actual notice" of the lawsuit. In their declarations, Defendants each state: “If the Court concludes that service documents purportedly mailed to me by plaintiff are presumed to have been received I ask that any failure to open the mail or understand the legal paperwork was due to my inadvertence, mistake or excusable neglect. However, I have no independent recollection of receiving any documents relating to this lawsuit before April 26, 2023.” (Declaration of Guadalupe Dagnino ¶ 6; Declaration of Daniel Dagnino ¶ 9.) Guadalupe Dagnino also states that she speaks only Spanish.
In construing Code of Civil Procedure section 473.5, the Court takes into consideration “the aim of implementing the policy of liberally granting relief so that cases may be resolved on their merits.” (Olvera v. Olvera (1991) 232 Cal.App.3d 32, 39 (Olvera).) In Goya v. P.E.R.U. Enterprises (1978) 87 Cal.App.3d 886 (Goya), the Court of Appeal affirmed a finding of “no ‘actual knowledge’ . . . even though the defendants concededly received actual copies of the summons and complaint; instead, the court accepted the contention that defendants' inability to understand English, and lack of business sophistication, amounted to a lack of ‘actual knowledge.’ ” (Olvera, supra, 232 Cal.App.3d at p. 40, quoting Goya, supra, 87 Cal.App.3d at p. 871.)
The Court finds that, despite proper service of the summons, complaint, and statement of damages, Defendants have shown they lacked actual knowledge of the lawsuit for purposes of Code of Civil Procedure section 473.5. In addition, Defendants have shown their lack of actual knowledge was not caused by their avoidance of service or inexcusable neglect. Therefore, the Court grants the motion.
In light of the Court’s conclusion, the Court does not address Defendants’ argument based on Code of Civil Procedure section 473, subdivision (b).
CONCLUSION
The Court GRANTS the motion of Defendant Guadalupe Gagnino to vacate the default entered on September 8, 2021.
The Court GRANTS the motion of Defendant Daniel Gagnino to vacate the default entered on November 9, 2022.
Defendants are ordered to file their answers within five days from the date of the hearing on this motion.
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.