Judge: Melvin D. Sandvig, Case: 23CHCV03533, Date: 2025-05-08 Tentative Ruling

Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assisant in North Valley Department F47, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2247.  Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and specially pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org. All hearings on law and motion and other calendar matters are generally NOT transcribed by a court reporter unless one is provided by the party(ies).

Case Number: 23CHCV03533    Hearing Date: May 8, 2025    Dept: F47

Dept. F-47

Date: 5/8/25                                                           TRIAL DATE: N/A

Case # 23CHCV03533

MOTION TO SET ASIDE ENTRY OF DEFAULT

(Captioned “Motion to Set Aside Proof of Service
and Opposition to Amendment to Complaint”)

Motion filed on 11/12/24.

MOVING PARTY:                Defendant Robert R. Rush III

RESPONDING PARTY:       No Opposition Filed [Plaintiff: Victoria Goring]

NOTICE: ok

RELIEF REQUESTED:         Set aside entry of Defendant’s default.

(“Request for Default should be . . . struck [sic] or set aside.”
(Mot., 6:14-15, 18-20.))

RULING: Grant.

SUMMARY OF ACTION & PROCEDURAL HISTORY

Plaintiff Victoria Goring (“Plaintiff”), self-represented, filed her complaint against defendant Robert R. Rush III (“Defendant”) on November 20, 2023, asserting claims for “fraud, negligence, civil rights, discrimination, professional negligence, intentional infliction of emotional distress, [and] negligence inflicting bodily harm”. (Compl., ¶ 8.) She claims damages of $567,982.50, plus prejudgment interest and costs. (Id., ¶ 10.)

On December 7, 2023, Plaintiff filed a Proof of Service in which an individual named Carson Goring attests s/he personally served Defendant the same day at 6425 Tyrone Ave., Van Nuys, CA 91401 (“Service Address”).

On August 5, 2024, Plaintiff filed a second proof of service, in which Carson Goring attests to personally serving Defendant with Plaintiff’s Request for Default at the same Service Address on July 31, 2024 at 3:30 p.m.

On August 12, 2024, the clerk entered Defendant’s default.

On September 17, 2024, Plaintiff filed an Incorrect Name Amendment re-identifying Defendant as “Hope of the Valley Rescue Mission”, which appears to be an entity of unknown form.

On November 12, 2024, Defendant filed the instant Motion to Set Aside Proof of Service and Opposition to Amendment to Complaint. Defendant timely served Plaintiff by U.S. and electronic mail on November 12, 2024.

Plaintiff filed no opposition, and Defendant no reply.

ANALYSIS

Defendant’s request for relief confuses the basis for his motion. In his caption and notice of motion, he construes his motion as a “motion to set aside proof of service” and simultaneously an “opposition to amendment to complaint”. But in the body of Defendant’s papers, he cites Code of Civil Procedure section 473, which states the Court’s authority to set aside its own judgments or orders - not a party’s filings, such as a proof of service.

Defendant cites no authority for his opposition to an Incorrect Name Amendment, which in any case has already been granted. There are mechanisms to argue a party has been misnamed, but an untimely opposition to an application already granted is not one of them.

The proper method to challenge service is a motion to quash. However, Defendant neither noticed nor argued that ground for relief under Code of Civil Procedure section 418.10, which governs motions to quash.

Based on the moving papers, the Court construes Defendant’s motion fundamentally as a motion to set aside the entry of default against him under Code of Civil Procedure section 473 – specifically, section 473, subdivision (d).

Defendant has established he is entitled to relief under section 473, subdivision (d).

Section 473(d) gives the Court equitable authority to set aside any void judgment or order. Default entered against a party never served with process is void. (See Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466 [defendant “ ‘under no duty to act upon a defectively served summons’ ”]; Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808-809 [court lacks jurisdiction without effective service].) Defendant has shown he was never served. The default entered against him is void and subject to set-aside.

Defendant’s declaration establishes he was not served with process. Although Plaintiff filed two proofs of service, neither was completed by a registered process server, so they are entitled to no deference. (Cf. Evid. Code, § 647.) Plaintiff filed no opposition. Defendant’s attestation is unchallenged, and it establishes (1) as a general matter, that he was not served (Rush Decl., ¶ 4); (2) that he did not learn about the lawsuit until nine months after the summons was purportedly served (Rush Decl., ¶ 3); (3) that the Service Address is a service center for his employer, and he does not work there (Rush Decl., ¶¶ 1, 5, 7); and (4) that he was not present at the Service Center on the day when service purportedly took place (Rush Decl., ¶ 6).

Defendant was not served with the complaint; the default entered against him on August 12, 2024 is void.

(Defendant’s motion is arguably unnecessary in the first place. By Incorrect Name Amendment, Plaintiff has now re-identified the defendant as Hope of the Valley Rescue Mission. Because Hope of the Valley Rescue Mission appears to be an entity, rather than an individual, the proofs of service upon Defendant individually do not establish proper service. Service on entities is governed by different rules than service on individuals. Plaintiff’s proofs of service do not establish compliance with any of those rules.)

For clarity, the Court must settle the question whether Defendant has generally appeared, thereby conceding to the Court’s jurisdiction. The Court finds he has not. By “correcting” her complaint, Plaintiff has now named a completely different entity from Defendant. He has no complaint to answer.

Moreover, although Defendant did not argue for relief under Code of Civil Procedure section 418.10, he captioned his motion that way, at least indicating his intent to file such a motion. A motion for 473 relief brought concurrently with a motion to quash is not regarded as a general appearance. (See Code Civ. Proc., § 418.10(d).) (There is an exception if the motion is denied – but the Court has granted this motion, albeit on a different basis.)

The motion is granted, case stands in the following posture:

1. The default entered against Defendant Rush on August 12, 2024 is vacated.

2. Plaintiff’s Complaint, as amended, names a single defendant, Hope of the Valley Rescue Mission, which appears to be an entity of unspecified form.

3. Based on the current record, no defendant has appeared or been served with process.

CONCLUSION

The motion is granted. The Court vacates the default entered against Robert R. Rush, III on August 12, 2024.