Judge: Mark A. Young, Case: 24SMCV00043, Date: 2025-04-29 Tentative Ruling

Case Number: 24SMCV00043    Hearing Date: April 29, 2025    Dept: M

CASE NAME:           Diamond Landscaping LLC v. Condren

CASE NO.:                24SMCV00043

MOTION:                  Motion to Set Aside/Vacate Default and Default Judgment

HEARING DATE:   4/29/2025

Legal Standard

Relief under Code of Civil Procedure (CCP) section 473(b) is either discretionary or mandatory. A motion for mandatory relief must be made no more than six months after entry of judgment and be accompanied by an attorney’s sworn affidavit attesting to the attorney’s “mistake, inadvertence, surprise or neglect.” (CCP § 473(b).) The attorney affidavit of fault must contain a “straight forward admission of fault.” (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) But it need not contain an explanation of the reasons for the attorney’s mistake, inadvertence surprise or neglect. (Martin Potts & Assocs., Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438-441.) Relief must be granted “unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.” (Ibid.) If mandatory relief is granted, the court must “direct the attorney to pay reasonable compensatory legal fees and costs” to the opposing counsel or parties. (CCP § 473(b).)

Where a party cannot obtain an attorney affidavit of fault, the party may seek discretionary relief under section 473(b) due to “mistake, inadvertence, surprise, or excusable neglect.” (CCP § 473(b).) A motion for discretionary relief must be made “within a reasonable time but in no instance exceeding six months after the judgment, dismissal, order, or proceeding was taken.” (Id.) If discretionary relief is granted, the court may in its discretion order the moving party to pay the costs, including attorney fees, incurred in obtaining the default. (Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816, 823; Vanderkous v. Conley (2010) 188 Cal.App.4th 111, 118-119.) If the motion for discretionary relief is granted, the court may order the offending attorney to pay monetary sanctions up to $1,000 to opposing parties, or up to $1,000 to the State Bar Client Security Fund, or “[g]rant other relief as is appropriate.” (CCP § 473(c)(1)(A), (B), (C).)

A motion for relief under section 473(b) “shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted. . .” (CCP § 473(b).) However, this requirement is not jurisdictional; substantial compliance may suffice. (Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 403 [finding substantial compliance where counsel offered proposed answer at motion hearing rather than serving it with moving papers].) 

CCP section 473.5(a) provides: “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.” If the court finds that the lack of actual notice in time to defend the action was not caused by avoidance of service or inexcusable neglect, the court may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action. (CCP § 473.5(c).)

REQUEST FOR JUDICIAL NOTICE

Defendant’s request for judicial notice is GRANTED. The Court takes notice of the existence of the cited documents, but not any hearsay statements therein.

Plaintiff’s objections to Defendant’s evidence are OVERRULED.

Analysis

Defendant Colin Condren moves to vacate the default and default judgment obtained by Plaintiff Diamond Landscaping, LLC. Defendant asserts that service was not properly made on Mr. Condren. Alternatively, Mr. Condren argues that he is entitled to relief due to inadvertence, mistake or neglect. Defendant provided a proposed answer and a proposed cross-complaint.

Defendant demonstrates that he lacked actual notice as a result of the service of summons, that the lack of notice was not due to avoidance of service, and that his failure to respond was excusable. Defendant submits that he resides at 1951 Mandeville Canyon Road, Los Angeles, California 90049. (Condren Decl., ¶ 1.) Condren explains that Diamond must know where he resides because the agreement underlying this lawsuit identifies his residence address as the address where the work would be performed and where all invoices where sent: 1951 Mandeville Canyon Road, Los Angeles, California 90049. (Condren Decl., ¶¶ 2-5.) Despite this knowledge, the proof of service on file claims Condren was sub-served via an employee of a UPS Store in Pacific Palisades on January 9, 2024. The proof of service and declaration of diligence is signed by registered process server Cesar Henandez-Govea on January 10, 2024. The declaration of diligence does not state any attempts to serve at another address. Diamond apparently never attempted to serve Condren at his Manderville residence. The proof on file states at paragraph 5b that Diamond did not know where Condren resides. But the above evidence demonstrates that Diamond did know Plaintiff’s residential address. Defendant further claims that he does not have a UPS Store account and has never authorized the UPS Store to accept process on his behalf. Thus, the proof of service did not comply with CCP section 415.20(c).

            Plaintiff presents a new declaration of diligence in response to this motion. (Devlin Decl., Ex. 2.) This declaration states that registered process server Daniel Mikulasch attempted service at the 1951 Mandeville Canyon Rd. address on January 12 and 15, 2024. This new declaration leaves the court with several questions to resolve, including (1) why this declaration of diligence not filed with the court; (2) why were there continued attempts at personal service on January 12 and 15, 2024, after sub-service was complete on January 9, 2024; (3) why was this new declaration of diligence signed on August 12, 2025, over seven months after the purported service attempts and only a few days after Defendant served the instant motion on August 9, 2024; and (4) why is the new declaration signed by a different process server than the server who signed the declaration of diligence filed with the Court. Plaintiff cannot reconcile these inconsistencies. The declaration itself is therefore untrustworthy.

The proof of service did not comply with the statutory requirements of service of process. Moreover, service of process did not result in actual notice until after entry of default. Defendant did not avoid service of summons since no personal service was even attempted on him. Under such circumstances, Defendant failure to respond was excusable under section 473(b) and 473.5. The Court vacates the resulting default and default judgment.

Accordingly, the motion is GRANTED.