Judge: Mark C. Kim, Case: 21LBCV00329, Date: 2022-12-06 Tentative Ruling
Case Number: 21LBCV00329 Hearing Date: December 6, 2022 Dept: S27
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.
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 2013, 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
insufficient to overcome the presumption that a process server’s declaration is
true and correct. Additionally, they
contend the motion is untimely.
b. Analysis
Defendant’s motion is brought pursuant
to CCP §473(d), which requires the Court to set aside a default and/or default judgment
as void if the defendant was not served with the summons and complaint. Plaintiffs’ opposition to the motion bounces
around from statute to statute and focuses on standards not applicable to a
motion brought under §473(d). Notably,
there is no time limit on a motion to vacate a void default and default
judgment under §473(d).
The motion ultimately boils down to
a credibility question. On the one hand,
Plaintiffs provide evidence that their registered process server went to the
Orizaba address, served a person who looks like Defendant, and served a person
who identified himself as Defendant. This is compelling.
On the other hand, Defendant declares
he has not lived at the subject address since 2013, and provides various
documents to support his position. The
exhibits attached to his declaration show the following:
Exhibit 1: Security Deposit statement dated
5/30/13 showing Defendant and Sofia Prea turned in his keys to the Orizaba
property and was to pay certain monies for damage to the property during his
tenancy
Exhibit 2: Driver’s license showing issue date 9/29/22
and expiration date 4/14/24 with address 4361 Myra Street in Cypress
Exhibit 3: Rent check written by Dennis Phan with
address on check 3319 E 10th St #235 in Long Beach
Exhibits 4, 5,
6: Electric, water, and gas bills for Sofina
Preap showing address 4361 Myra Street in Cypress
Some issues presented by Defendant’s
motion include the fact that his declaration consistently refers to his address
as being on Mayra Street, but all documents show it on Myra Street. Additionally, it is not clear what the 10th
St address on his check is. The Court
presumes Sofina Preap and Sofia Prea are the same person, and presumes she is
Defendant’s wife or partner, but this is never made clear by any of the moving
documentation. The biggest issue is the
process server’s declaration that he served a person who looks like Defendant
and who identified himself as Defendant.
On the other hand, Plaintiffs
recently served Defendant with the ORAP papers at his current address on Myra
Street, and it is not clear how Plaintiffs learned of that address so quickly
after serving the summons and complaint at an old address. Plaintiffs served all papers leading up to judgment
at the old address, but then somehow became aware of the new address when it
became necessary to have Defendant appear in order to collect on the judgment.
Plaintiffs have indicated a willingness
to subpoena the process server for testimony at the hearing. The Court is inclined to take very brief testimony
from the process server and from Defendant in order to determine
credibility. If the process server and
Defendant can be present at the hearing, the Court will take the testimony at
the time of the hearing. If they cannot,
the Court will reschedule the hearing for a date when they can both be
present.
The Court notes that there are ORAPs
re: Phan and Sandu and a CMC scheduled in connection with the hearing on the
above motion. The Court will hear the ORAPs and CMC immediately
after the hearing on the motion.