Judge: Michael E. Whitaker, Case: BC640588, Date: 2023-03-21 Tentative Ruling

Case Number: BC640588    Hearing Date: March 21, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

              Defendant Craig Carley (Defendant) moves to set aside the Clerk of the Court’s August 11, 2022, entry of default judgment.  Plaintiff Sonia Diaz (Plaintiff) has not filed a motion in opposition.

            Preliminarily, the Court continued the initial hearing date set for January 24, 2023, to March 21, 2023, to allow Defendant time to ensure that proper notice of the instant motion was given to Plaintiff.  (See Minute Order January 24, 2023.)  The Court ordered Defendant to provide notice of continued hearing and serve moving papers on David S. Lamonica, Esq. and Southern California Attorneys, APC, both counsel associated with Plaintiff.  (See Minute Order January 24, 2023.)  On February 1, 2023, Defendant filed with the Court notice of motion and moving papers which indicated the new hearing date as March 21, 2022.  Additionally Defendant filed proofs of service indicating service of the attendant notice of motion and moving papers on both David S. Lamonica, Esq. and Southern California Attorneys, APC, via messenger delivery.  Accordingly, the Court finds Defendant has perfected proper notice of the motion on Plaintiff.

ANALYSIS

1.     STATUTORY RELIEF

Per Code of Civil Procedure section 473.5, “[w]hen 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 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 of a written notice that the default or default judgment has been entered.”  (Code Civ. Proc., §i 473.5, subd. (a).)  “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.”  (Code Civ. Proc., § 473.5, subd. (c).) 

            Here, on May 11, 2021, Plaintiff filed a proof of service of the summons and complaint reflecting personal service on Defendant.  The proof of service states the process server personally served the summons and complaint on Defendant at 1003 Beech Avenue, Torrance, CA 90501 on January 13, 2017 at 8:20 am.  (See May 11, 2021 Proof of Service.)  

Under Code of Civil Procedure section 415.10 et seq., a defendant may be served either (1) by personal delivery to the defendant (Code Civ. Proc., § 415.10); (2) by substitute service (Code Civ. Proc., § 415.20); (3) by mail coupled with acknowledgement of receipt (Code Civ. Proc., § 415.30); or (4) by publication (Code Civ. Proc., § 415.50). A declaration of service by a registered process server establishes a presumption that the facts stated in the declaration are true. (Evid. Code, § 647; Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750.)

Defendant advances his own declaration to rebut the Proof of Service dated January 18, 2017.  Defendant states that the January 18, 2017 Proof of Service is false because service would not have been possible since Defendant was performing physical therapy away from home at the time of the claimed service.  (See Declaration of Craig Carley, ¶ 22.) 

However, the Court notes that the time frames in which Defendant asserts he was away from the house conducting physical therapy, do not line up with the time of purported service as indicated in the January 18, 2017 Proof of Service.  The January 18, 2017 Proof of Service indicates that Defendant was personally served on January 13, 2017 at 8:20 a.m.  (See May 11, 2021 Proof of Service.)  Defendant maintains the impossibility of the January 18, 2017 Proof of Service by stating that “[e]very day during the week, Monday through Friday, from the beginning of December, 2017, to February, 2018, I was either in physical therapy, from 8:00 a.m. to 11:00 a.m., with a physical therapist, or conducting additional physical therapy outside of our residence, from 8:00 a.m., to 10:00 a.m.”  (See Declaration of Craig Carley, ¶ 22.) 

Yet, according to Defendant’s declaration, he did not start physical therapy until December, 2017, nearly 11 months after the purported service of the summons and complaint in January, 2017.  Defendant provides no other circumstances which would explain why he could not have accepted service at his residence on January 13, 2017, at 8:20 a.m. besides his purported physical therapy schedule, the timing of which he describes through contradictory statements.  (See Declaration of Craig Carley, ¶ 22.)   

The Court finds Defendant has not advanced sufficient competent evidence to establish that service of Defendant at his residence on January 13, 2017 was impossible, as Defendant concedes he resided at 1003 Beech Avenue at the time of service, and has failed to conclusively establish that he was away from home at the time of service.  Thus, Defendant has failed to rebut the presumption that the facts stated in the process server’s declaration in the January 18, 2017 proof of service are true. (See Floveyor International, Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795 [filing a proof of service that complies with statutory standards creates a rebuttable presumption that service was proper].) 

2.     EQUITABLE RELIEF

Defendant contends argues, if he should fail to qualify for statutory relief under Section 473.5, he is entitled to equitable relief.

“Apart from any statute, courts have the inherent authority to vacate a default and default judgment on equitable grounds such as extrinsic fraud or extrinsic mistake. “Extrinsic fraud” usually arises when a party is denied a fair adversary hearing because he has been deliberately kept in ignorance of the action or proceeding, or in some other way fraudulently prevented from presenting his claim or defense.  In contrast, the term “extrinsic mistake” is “broadly applied when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits. Extrinsic mistake is found when among other things a mistake led a court to do what it never intended.”  (Bae v. T.D. Service Co. (2016) 245 Cal.App.4th 89, 97-98 [cleaned up]; accord Rappleyea v. Campbell, supra, 8 Cal.4th at p. 981 [“After six months from entry of default, a trial court may still vacate a default on equitable grounds even if statutory relief is unavailable”].)

Further, the Bae court held that “A party may seek equitable relief from a default and default judgment by filing a motion in the pertinent action or initiating an independent action. [A] motion brought to do so may be made on such ground even though the statutory period [for relief under Code of Civil Procedure section 473, subdivision (b) ] has run.  Because a motion for equitable relief is “direct,” rather than “collateral,” extrinsic fraud or mistake may be demonstrated by evidence not included in the judgment roll or record relating to the judgment.”  (Bae v. T.D. Service Co., supra, 245 Cal.App.4th at p. 98 [cleaned up].) 

“[R]elief under the doctrine of extrinsic mistake is subject to a stringent three-part formula.  [T]o set aside a [default] judgment based upon extrinsic mistake one must satisfy three elements.  First, the defaulted party must demonstrate that it has a meritorious case. Second, the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Last, the moving party must demonstrate diligence in seeking to set aside the default once discovered.”  (Bae v. T.D. Service Co., supra, 245 Cal.App.4th at p. 100 [cleaned up]; see also Rappleyea, supra, 8 Cal.4th at p. 982 [equitable relief should be granted in only exceptional circumstances].)  Thus, the Court will address Defendant’s claim under the three-prong test.

Has Defendant demonstrated that he has a meritorious case?  The short answer is Yes.  Defendant advances his declaration in support of the motion.  Defendant avers that on the date of the incident in question, Plaintiff was leaning over Defendant’s fence when Defendant’s dog ran to Plaintiff’s location, and jumped on the fence and ended up scratching Plaintiff.  (Declaration of Craig Carley, ¶ 1.)  Defendant states that Plaintiff and Plaintiff’s son declined Defendant’s offer to provide first aid or call an ambulance, and instead of seeking medical attention, they called an attorney.  (Declaration of Craig Carley, ¶ 3.)  Further, Defendant describes a conversation he had with a reporting officer who took Plaintiff’s statement and took pictures of Plaintiff’s arm.  (Declaration of Craig Carley, ¶ 5.)  According to Defendant, the police officer described Plaintiff’s injury as a “small scratch.”  (Declaration of Craig Carley, ¶ 5.)  Based upon his declaration, Defendant has alleged facts which indicate that he has a meritorious defense as to the severity of Plaintiff’s injury and thus the amount of damages owed.

Has Defendant articulated a satisfactory excuse for not responding to the summons and complaint?  The short answer is Yes.  Defendant claims that on the day of the incident, he contacted his homeowner’s insurance company, USAA, and notified them of the incident.  (Declaration of Craig Carley, ¶ 6.)  USAA later notified Defendant that they would be handling the claim by Plaintiff.  (Declaration of Craig Carley, ¶ 7.)  Defendant avers that in 2015, he was approached by an attorney who told him that Plaintiff was not going to pursue the case and her claim was going to be dropped.  (Declaration of Craig Carley, ¶ 8.)  In December of 2016 USAA notified Defendant that they have been unable to settle Plaintiff’s claim and advised that he call USAA immediately if he is served with a lawsuit.  (Declaration of Craig Carley, ¶ 9.)  Between December 2016 and July 2019 Defendant corresponded with USAA confirming that he had still not received any documents related to Plaintiff’s dog bite claim.  (Declaration of Craig Carley, ¶¶ 9-17.)  In August of 2022, Defendant received notice from USAA that a default and default judgment had been entered against him with regard to Plaintiff’s claim.  (Declaration of Craig Carley, ¶ 25.)  Defendant argues as is evidenced in the correspondence between Defendant and his claim’s adjustors, Defendant would have notified USAA immediately if he had been served with the understanding that USAA would provide his defense.  (Declaration of Craig Carley, ¶¶ 6-7, 9-17, Exhibits 1-10.)  Based upon his declaration, the Court finds that Defendant has articulated a plausible excuse for not responding to the summons and complaint, resulting in the entry of default. 

Has Defendant demonstrated diligence in seeking relief from the dismissal order?  The short answer is Yes.  Defendant advances the Declaration of Christine Coverdale (Counsel), counsel for Defendant.  Counsel states that on August 19, 2022, Plaintiff’s Counsel faxed a copy of the Default Judgment upon USAA and Counsel was retained immediately thereafter.  (Declaration of Christine Coverdale, ¶ 4.)  Counsel avers that the she reserved the first available date for the instant motion which was December 9, 2022, then continued to January 24, 2023, to accommodate Counsel’s trial schedule.  (Declaration of Christine Coverdale, ¶  4.)  Further Counsel attempted to obtain Plaintiff’s counsel’s stipulation to set aside the default and default judgment and Plaintiff’s counsel refused.  (Declaration of Christine Coverdale, ¶ 5.)  Based upon the Counsel’s declaration, the Court finds that Defendant acted diligently under the circumstances in seeking relief from the entry of default. 

As the California Supreme Court in Rappleyea has remarked, equitable relief should only be granted in exceptional circumstances.  Here, Defendant has demonstrated that he is entitled to such relief under Rappleyea v. Campbell and Bae v. T.D. Service Co.  Specifically, Defendant has met all 3 prongs of the applicable “extrinsic mistake” test.

CONCLUSION AND ORDER

            Therefore, the Court grants Defendant’s motion to set aside the entry of default and default judgment and orders the entry of default and default judgment vacated.  In addition, the Court orders Defendant to file and serve a response to the complaint on or before April 4, 2023. 

            Further, the Court sets a Trial Setting Conference on May 5, 2023 at 8:30 A.M. in Department 32.  

            The Clerk of the Court shall provide notice of the Court’s ruling.