Judge: Melvin D. Sandvig, Case: 22CHCV01116, Date: 2024-11-14 Tentative Ruling

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Case Number: 22CHCV01116    Hearing Date: November 14, 2024    Dept: F47

Dept. F47

Date: 11/14/24                                                                  TRIAL DATE: 12/9/24

Case #22CHCV01116

MOTION TO SET ASIDE DEFAULT

Motion filed on 9/13/24.

MOVING PARTY: Defendant Jessica Skinfield

RESPONDING PARTY: Plaintiffs Anderson Boyce and Rosie Boyce

NOTICE: ok

RELIEF REQUESTED: An order granting Defendant Jessica Skinfield relief from default under CCP 473.5. 

RULING: The motion is denied.    

SUMMARY OF FACTS & PROCEDURAL HISTORY

This action arises out of a dispute between neighboring residential landowners.  Plaintiffs Anderson Boyce and Rosie Boyce (collectively, Plaintiffs) own and occupy real property located at 29402 Plymouth Road, Castaic, California 91384 (Plaintiffs’ Property).  Defendants Jessica Skinfield (Defendant) owns real property located at 29403 Fenway Court, Castaic, California 91384 (Defendant’s Property).  Defendants Jason McCune and Andrea McCune (the McCunes) owned, leased, occupied and/or controlled the Defendant’s Property prior to Defendant.  Plaintiffs contend that there are trees on Defendant’s Property which have been causing damage to Plaintiffs’ Property for almost 20 years.  Plaintiffs also claim that the trees present an unreasonable risk of causing bodily injury to individuals on Plaintiffs’ Property.      

On 11/10/22, Plaintiffs filed this action for damages and injunctive relief against Defendant, Francesca Vargas (who has since been dismissed) and the McCunes.  In January 2023, Plaintiffs served the McCunes.  On 2/28/23, the Court granted Plaintiffs’ ex parte application to serve the Defendants by publication.  On 4/3/23, the McCunes answered the complaint.  On 4/5/23, Plaintiffs filed proof of publication as to Defendant.  On 10/23/23, Plaintiffs filed a proof of service indicating that Defendant was personally served with the Summons and Complaint on 10/15/23 at 29100 The Old Road, Castaic, CA 91384. 

On 11/16/23, Defendant, without filing a response to the complaint, appeared at the hearing on Plaintiffs’ request for a preliminary injunction and indicated that she would “be filing a response today.”  (See 11/16/23 Minute Order, p.5).  Defendant never filed a response and on 3/7/24, default was entered against Defendant pursuant to Plaintiffs’ request.  (See 3/7/24 Request for Entry of Default).  The Request for Entry of Default was mailed to Plaintiff at 29100 The Old Road, Castaic, CA 91384. 

On 8/15/24, Defendant appeared at and participated in the Mandatory Settlement Conference.  (See 8/15/24 Minute Order).  On 9/13/24, Defendant, representing herself, filed and served the instant motion seeking an order granting Defendant Jessica Skinfield relief from default under CCP 473.5.  On 10/18/24, Defendant filed a substitution of attorney substituting in Joshua D. Pincus from the firm Resnick & Louis, P.C. as her attorney.  On 10/22/24, 16 court days before the 11/14/24 hearing date, Defendant’s counsel filed and electronically served a supplemental brief and declaration in support of the motion.  On 10/31/24, Plaintiffs filed and served an opposition to the motion and on 11/7/24, Defendant filed and served a reply to the opposition. 

ANALYSIS

Defendant makes this motion pursuant to CCP 473.5 which provides:

“(a) 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.

(b) A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.

(c) Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.”

Defendant does not contend that she did not have actual notice of the action in time to defend.  Rather, the motion is based on the claim that Defendant did not receive notice of the Request for Entry of Default because it was mailed to a non-existent address.  (See Motion, p.2:19-20; Skinfield Decl. ¶¶3, 20, 21, 30).  Defendant provides no explanation as to why she did not respond to the complaint before default was entered, especially considering her representation at the 11/16/23 hearing that she would file a response that day.  (See Skinfield Decl., generally). 

Although the motion cites caselaw for granting relief pursuant to CCP 473, Defendant fails to adequately explain how the default was entered against her as a result of her mistake, inadvertence, surprise or excusable neglect considering she does not dispute being served with the summons and complaint and the evidence establishes that she was aware of the action and her need to file a response thereto as early as 11/16/23.  (See 11/16/23 Minute Order, p.5).

Defendant’s supplemental brief contends that the default “must be set aside per Code of Civil Procedure Section 187.”  (See Supplemental Brief, p.2:1-3).  CCP 187 provides:

“When jurisdiction is, by the Constitution or this Code, or by any other statute, conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code.”

Defendant has failed to explain how/why CCP 187 applies as the “course of proceeding” for setting aside an entry of default is specifically addressed in CCP 473.5 and/or CCP 473.  The supplemental brief, like the motion, argues that the default should be set aside because “Defendant was not properly served with the Request for Default.”  (See Supplemental Brief, p.2:11-12).  Again, there is no argument that Defendant was not properly served with the Summons and Complaint and/or that she did not have notice of this action in time to defend. 

Defendant cites no authority for the proposition that a mistake in the address where the Request for Entry of Default was mailed to Defendant provides grounds to set aside the entry of default.   In fact, the law provides that there is no requirement that defendant receive a copy of the request for entry of default as long as a mailing declaration certifies that it has been sent.  See CCP 587; Standard Microsystems Corp. (2009) 179 CA4th 868, 899-900. 

The reply introduces the new argument that Defendant’s insurer has a right to properly defend the claim and would be prejudiced by being unable to do so.  The Court has not considered this argument because it was improperly made for the first time in the reply and Plaintiffs did not have the opportunity to respond to it.    

CONCLUSION

The motion is denied.