Judge: Mark H. Epstein, Case: 22SMCV02965, Date: 2023-10-06 Tentative Ruling

Case Number: 22SMCV02965    Hearing Date: October 6, 2023    Dept: I

The motion to vacate the default is GRANTED.  Defendant will file a standalone answer within 5 court days.  This order does not include leave to file a cross-action.  If defendant wishes to file a cross-action, defendant must seek leave of court to do so.

Plaintiff sues defendant in a construction defect case.  It is somewhat associated with another case, Talley. In that other case, plaintiff’s counsel spoke to an attorney who represented the moving parties here.  Although plaintiff’s counsel did speak to defense counsel, plaintiff’s counsel here does not appear to be representing anyone in Talley.  In any case, plaintiff’s counsel appears to have reached out to defense counsel in Talley and may have been told that counsel no longer represented defendants.  Plaintiff tried to serve defendant’s at Cartznes’ home, Meyers’ home, and Precision’s address but all attempts were unsuccessful.

In March 2023, plaintiff’s counsel learned that there was new defense counsel in Talley.  Plaintiff’s counsel spoke to new counsel who said he could not accept service because new counsel was hired as insurance counsel and only in that other case.  However, that counsel said that she would forward the complaint to the carrier, Argo.  Plaintiff’s counsel then applied to serve by publication and service on the Secretary of State, and the applications were granted.  Plaintiff’s counsel noted the difficulty serving defendants, including one time when a person told the process server that Cartznes’ address was incorrect (even though it likely was correct).  Oddly, the court did not include its usual language requiring plaintiff to send the documents by certified mail to all known defense addresses. 

Counsel for the defense in the Talley matter stated that between April 17, to August 11, she received no notification of the service by publication or the intent to seek default.  And that counsel, Schoneman, was assigned to the instant case by the carrier on August 11, 2023.

Defendants claim the default should be set aside because plaintiff’s counsel never told Schoneman that service had been accomplished (by publication) or defaults entered.  Defendants state that had they known that service had been accomplished, they would have answered and litigated; they claim they were just waiting to be served.  They now seek relief under section 473, which allows the court to grant relief if a timely application is made and there is a showing of “mistake, inadvertence, surprise, or excusable neglect.”  Only "very slight evidence” is required in most cases.  (Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13.) 

Plaintiff argues it would be a miscarriage of justice if the motion is granted.  Plaintiff claims defendants have been evading service and that this is simply tactical.  It is fair to say that the opposition’s tone drips anger.  That tone is unhelpful.  Among other things, it might well be that plaintiff will prevail and that defendants are bad actors on the merits.  Or not.  But the issue is not really the crux of the motion now at issue.

The evidence suggests that there is some reason to believe that defendants were aware of the suit or were turning a deliberate blind eye to the question.  They certainly did nothing to assist in the service process, which is a tactic that bodes ill for the future and will not ultimately serve them well.  But for these purposes, their required showing is very slight.  And whether defendants were evading service is an open question.  In almost all cases, the process server was there during working hours—it could well be that the reason no one answered the door most times was because no one was at home, not because someone was hiding in the closet trying to evade service.

It is also true that plaintiff’s counsel could easily have spoken to Schoneman and state that service was being done by way of publication.  Schoneman might well, under those circumstances, have obtained authority to accept service or have answered to avoid the issue.  One does not know because plaintiff’s counsel did not try.  Nor does the court see prejudice.  While it is true plaintiff will to prove the case, that is just what happens in litigation, not prejudice.  As to costs, they are discretionary.  (This is not a situation where counsel has submitted a declaration of fault.)  The court will inquire as to the actual costs associated with filing the request for entry of default judgment.  The court is likely to require defendant to pay that amount.  While plaintiff could have done more, defendants’ claim of surprise that there was a lawsuit does ring somewhat hollow.

The court STRONGLY advises all parties to do a re-set on relations.  Otherwise, this will be a long, painful, and expensive experience for everyone.