Judge: Michael Shultz, Case: 23STCV30910, Date: 2025-01-21 Tentative Ruling

DEPARTMENT 40 - MICHAEL J. SHULTZ  - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 23STCV30910    Hearing Date: January 21, 2025    Dept: 40

23STCV30910 Carmen John Perri v. Botach Management, LLC

Tuesday, January 21, 2025

[TENTATIVE] ORDER GRANTING MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT DATED MAY 16, 2024

I.       BACKGROUND

      The complaint alleges claims for violations of the Unruh Civil Rights Act. The court entered Defendant’s default on March 11, 2024, and entered judgment on May 16, 2024.

      Defendant filed this motion on November 8, 2024, to have the default and judgment set aside due to Defendant’s mistake, inadvertence, surprise, or excusable neglect and because Plaintiff did not serve Defendant’s agent for service of process. The service accomplished did not result in actual notice to Defendant.

      Plaintiff was timely served with the motion but did not file an opposition.

II.     DISCUSSION

      The court can set aside any void judgment after notice to the other party. (Code Civ. Proc., § 473 subd. (d). Lack of personal jurisdiction renders a default judgment void, so that it may be vacated at any time. (Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1249 [“When a court lacks jurisdiction in a fundamental sense, an ensuing judgment is void, and ‘thus vulnerable to direct or collateral attack at any time.’"].)

      Defendant is alleged to be a limited liability corporation. (Complaint, ¶ 2.) Service must be made on the designated agent for service of process or an officer of the corporation or anyone authorized to accept service. (Code Civ. Proc., § 416.10.)

      The proof of service indicates that service was accomplished by substituted service on an unidentified person at the front desk of Defendant’s office. (Mot.  Ex. A.) The designated agent for service of process is Benjamin Botach as reflected in Secretary of State records. (Botach Decl., Ex. A.)

      Plaintiff bears the burden of proving by a preponderance of evidence that "all necessary jurisdictional criteria are met." (Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1233; Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439-1440.) Plaintiff did not attempt to meet that burden.

      Accordingly, Defendant’s motion is GRANTED. The court vacates the default entered on March 11, 2024, and the judgment entered on May 16, 2024. Defendant is ordered to file its answer within 10 days.