1. Background Facts

Plaintiffs, Robert Lord and Broadband
Service Group, Inc. filed this action against Defendants, Christopher M. Sandu,
Dennis Phan, and Legacy Communications for breach of contract, fraud, and
related claims.  Plaintiffs filed the complaint
on 6/16/21.  The crux of the complaint is
that Defendants agree to purchase vehicles and equipment from Plaintiffs, and
made a series of representations about their ability to repay the loans, but
Defendants were neither willing nor able to make the payments when they made
the representations.    

 

On 8/31/21, Plaintiffs filed proof
of service on each of the defendants.  The
POS documents showed service on Sandu and Phan by personal service, and on Legacy
by substitute service.  On 11/12/21, Plaintiffs
dismissed Legacy from the action.  On
11/22/21, the Clerk, at Plaintiffs’ request, entered Phan’s and Sandu’s defaults.  On 4/12/22, after a default prove-up hearing,
the Court entered judgment against Defendants; on 4/14/22, the Court entered an
amended judgment.  The amended judgment
obligates Defendants, and each of them, to pay Plaintiffs, and each of them,
the principal amount of $954,247.91, plus interest, attorneys’ fees, and costs,
for a total judgment of $1,100,988.40.

 

2. Motion to Vacate
   Default

a.    
Parties’ Positions

On 6/22/22, Phan filed this motion
to vacate the default and default judgment entered against him.  Phan supports the motion with his own
declaration, wherein he attests that he lived at the address where he was purportedly
served until 2016, but has not lived there since.  He contends he did not learn of this action
until he was served with papers relating to the upcoming judgment debtor’s examination
(ORAP), which were served on him at his business address.

 

Plaintiffs oppose the motion.  They contend Phan’s declaration is
self-serving in nature, and fails to rebut the process server’s declaration,
wherein the process server avers that he personally served Phan, who identified
himself as “Dennis Phan,” which is highly unlikely if he was some other
person.  They also contend the motion is
not timely, as it was filed more than six months after they served the request
for entry of default on Phan. 

 

In reply, Phan argues he met his
burden to rebut the process server’s declaration, and his motion is
timely.  He argues the law favors
resolution of disputes on their merits, and there will be no prejudice to
Plaintiff if the motion is granted.

 

b.     CCP
§473.5

Phan’s motion is brought solely
pursuant to CCP §473.5.  Both the notice
of motion and the points and authorities reference only this section.  §473.5 does not appear to provide for relief
under these circumstances.  The Rutter Guide
on Civil Procedure Before Trial, §5:420, explains:

Where service of summons has not
resulted in actual notice to a party in time to defend the action, the court is
empowered to grant relief from a default or default judgment. [CCP § 473.5]

This section is designed to provide
relief where there has been proper service of summons (e.g., by substitute
service or by publication) but defendant nevertheless did not find out about
the action in time to defend. Typically, these are cases in which service was
made by publication. [See Randall v. Randall (1928) 203 C 462, 464-465,  264 P 751, 752;  Trackman v. Kenney (2010) 187 CA4th 175, 180,
114 CR3d 619, 622]

Compare—improper service of summons:
If the summons was not properly served, relief from default or default judgment
should be sought under CCP § 473(d) (relief from void judgments; see ¶ 5:484
ff.).

 

Compounding the problem, Phan
failed to provide a proposed answer to the complaint, which is required per
§473.5(b).  Additionally, the motion was
made more than 180 days after Plaintiffs gave Phan notice of the default entered
against him (although admittedly this notice was at the same potentially improper
address where Phan was purportedly served with the summons and complaint). 

 

Because §473.5 is inapplicable, and
also because Phan did not comply with the procedural requirements of the section,
the motion is denied.  The Court cannot grant
a motion on grounds not mentioned in the moving papers.  See Luri v. Greenwald (2003) 107 Cal.App.4^th
1119, 1125, wherein the Court held that a motion should not be granted on
grounds not stated in the notice of motion; the Court went on to clarify that a
defect in the notice can be cured by way of proper points and authorities, but
the points and authorities filed with the instant motion mention nothing other
than §473.5.

 

The ruling is without prejudice to
Phan’s right to bring a motion for relief on the ground that the default and default
judgment are void because he was not served. 
Before Phan brings any such motion, the parties must meet and confer in
an attempt to determine whether service was proper or not.

 

The Court notes that neither the
moving papers nor the opposing papers provide sufficient evidence for the Court
to rule on the motion.  If Phan
ultimately brings the motion a second time, Phan must provide detailed evidence
showing where he currently lives, including things like utility bills, driver’s
license, etc., as well as evidence showing he lived at that address at the time
of service and for a period of time prior thereto.  He should be prepared to rebut Plaintiffs’
process server’s detailed description of him in the proof of service.  Plaintiffs should provide a detailed
declaration from their process server concerning the interaction with Phan,
which should provide as much detail as possible to show the Court that the
person served matched Phan’s description. 

 

3. Final Notes

The Court has ORAPs scheduled today
concerning both Phan and Sandu.  Phan and
Sandu must appear and testify at the ORAPs. 

 

The Court notes that Plaintiffs’
attorney has a motion to be relieved as counsel scheduled for 9/15/22.  The motion was filed on 8/24/22, which was
less than sixteen days prior to the scheduled hearing.  Counsel sought an order permitting him to
have the motion heard on shortened time, but the application was denied.  The Court asks Counsel to take the motion off
calendar and reschedule it on regular notice, as the motion will be denied due
to its untimely filing and service.