Judge: Melvin D. Sandvig, Case: 22CHCV00679, Date: 2023-12-04 Tentative Ruling

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Case Number: 22CHCV00679    Hearing Date: December 4, 2023    Dept: F47

Dept. F47

Date: 12/4/23

Case #22CHCV00679

MOTION TO SET ASIDE DEFAULT & DEFAULT JUDGMENT

Motion filed on 10/10/23.

MOVING PARTY: Defendants Jonathan Berdeguer and Jennie Buchelly

RESPONDING PARTY: Plaintiff Larry Tran

NOTICE: ok

RELIEF REQUESTED: An order setting aside the default entered on 4/10/23 and default judgment entered in this case on 4/13/23 against Defendants Jonathan Berdeguer and Jennie Buchelly.

RULING: The motion is granted, in part, and denied, in part. 

SUMMARY OF FACTS & PROCEDURAL HISTORY

This action arises out of Defendants Jonathan Berdeguer (Berdeguer) and Jennie Buchelly’s (Buchelly) (collectively, Defendants) tenancy at premises owned by Plaintiff Larry Tran (Plaintiff).  On 8/24/22, Plaintiff filed this action against Defendants for breach of contract and common counts. 

On 10/11/22, Buchelly was personally served with the summons and complaint.  (See Proof of Service filed 3/15/23).  On 10/21/22, Plaintiff filed an application to serve Berdeguer by publication.  On 3/15/23, proof of service by publication was filed.  On 4/10/23, default was entered against Defendants.  On 4/13/23, default judgment was entered against Defendants. 

On 6/28/23, Defendants were personally served with Applications and Order for Appearance and Examination.  (See Applications filed 5/19/23 and Proofs of Service filed 7/10/23). 

On 10/10/23, Defendants filed the instant motion seeking an order setting aside the default entered on 4/10/23 and default judgment entered in this case on 4/13/23.  On 11/21/23, Plaintiff filed an opposition.  There is no proof of service attached to the opposition.  On 11/27/23, Defendants filed and served a reply to the opposition noting that the opposition was filed and served 2 days late and requesting that the Court strike/not consider same.    

ANALYSIS

Defendants’ request that the Court strike the late opposition is denied.  Defendants have not shown that they were prejudiced by the late filing or service.  Nor have Defendants requested a continuance of the hearing so that they have more time to respond to the opposition.  Without considering the opposition, the Court’s ruling on the motion would be the same. 

The  Court notes that the declarations filed in support of the motion are not executed in compliance with CCP 2015.5. 

Buchelly requests relief from the default and default judgment under CCP 473(b) claiming that the default and default judgment were entered as a result of her mistake, inadvertence, surprise or excusable neglect.  Buchelly admits to being personally served on 10/11/22.  (Buchelly Decl. ¶5).  Buchelly then claims that she became sick with Covid at the end of October and/or early November 2022, she was sick for nearly three months and she forgot about being served until receiving “a notice of examination.”  (Buchelly Decl. ¶¶8-10).  Attached to Buchelly’s declaration is a photo taken on 11/10/22 of a home Covid test.  There is no medical documentation to establish that the results are actually Buchelly’s or when the test was taken.  Even if the Court accepts as true that Buchelly tested positive for Covid on or around 11/10/22, she had approximately a month to respond to the complaint before such time.  As such, it does not appear that the default was entered as a result of her illness but rather her inexcusable neglect in failing to timely respond to the complaint. 

Additionally, Buchelly admits that she remembered the lawsuit when she “received a notice of examination” which was personally served on her on 6/28/23.  (See Buchelly Decl. ¶9; Proof of Service filed 7/10/23).  Buchelly fails to explain why she waited approximately 3 ½ months after “remembering” being served with the summons and complaint to file the instant motion for relief from default and default judgment.  (See Buchelly Decl., generally).  An application for relief under CCP 473(b) based on a party’s own fault must be made within a reasonable time with six months being the outer most time limit.  Therefore, even if the Court found that Buchelly’s failure to timely respond to the complaint was excusable due to her claimed illness, she failed to act within a reasonable time to have the default and default judgment set aside once she learned of same.    

CCP 473(d) allows the Court to set aside any void judgment or order.  The default and default judgment entered against Berdeguer are void due to lack of personal jurisdiction.  There is no  evidence in the court file that Berdeguer was properly served with the summons and complaint.  Although Plaintiff filed an Application for Publication, there is no court order allowing for service by publication as required.  See CCP 415.50.  The fact that Berdeguer may have had actual notice of the action is not a substitute for proper service of process and is insufficient to confer jurisdiction.  American Express Centurion Bank (2011) 199 CA4th 383, 392.  Therefore, the default and default judgment based on such service of the summons and complaint on Berdeguer are void entitling him to have them set aside.   

CONCLUSION

The motion is denied as to Defendant Jennie Buchelly and granted as to Defendant Jonathan Berdeguer.