Judge Olivia Rosales, Case 22NWCV00320 2023-01-03 Tentative Ruling

Judge: Olivia Rosales, Case: 22NWCV00320, Date: 2023-01-03 Tentative Ruling

Case Number: 22NWCV00320 Hearing Date: January 3, 2023 Dept: SEC

THE PACIFIC SOUTHWEST DISTRICT OF THE LUTERAN CHURCH – MISSOURI SYNOD v. JENSEN, et al.

CASE NO.: 22NWCV00320

HEARING: 1/3/23 @ 10:30 AM

JUDGE: LEE W. TSAO

TENTATIVE RULING

I. Defendant Peace Lutheran Church, Incorporated, of South Gate, California’s motion to set aside default is GRANTED.

II. Defendant Carvel’s motion to set aside default is GRANTED.

III. Defendant Jensen’s motion to set aside default is GRANTED.

Defendant Peace Lutheran to give NOTICE.

As an initial matter, the court accepts Defendants’ late memoranda and finds that Plaintiff was not prejudiced because the court fully considered Plaintiff’s oppositions.

I. Peace Lutheran’s Motion

Defendant Peace Lutheran Church, Incorporated, of South Gate, California (“Peace Lutheran”) moves to set aside its default pursuant to CCP §§ 473 and 473.5.

“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. (CCP § 473(b).)

“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.” (CCP § 473.5(a).)

“Unless time is of the essence, an attorney should agree to an extension without requiring motions or other formalities, regardless of whether the requesting counsel previously refused to grant an extension.” (State Bar California Attorney Guidelines of Civility and Professionalism §6.)

"We do not approve of the ‘hardball’ tactics unfortunately used by some law firms today. The extension of normal courtesies and exercise of civility expedite litigation and are of substantial benefit to the administration of justice." (Ahanchian v. Xenon Pictures, Inc. (9^th Cir. 2010 624 F.3d 1253, 1263.)

“The quiet speed of plaintiffs' attorney in seeking a default judgment without the knowledge of defendants' counsel is not to be commended.” (Smith v. Los Angeles Bookbinders Union No. 63 (1955) 133 CA2d 486, 500.)

A default was entered against Defendant Peace Lutheran on September 8, 2022. The motion was filed within the 6-month filing deadline, and is timely.

The court accepts Attorney Louis Scott Brenes’s declaration of surprise and excusable neglect. (Brenes Decl., ¶¶ 1-8.) On “August 3, 2022, Plaintiff’s counsel entered into an agreement with me, attorney Louis Scott Brenes, Esq., That Plaintiff would not take the default of Peace Lutheran Church. This based upon the fact that I was seeking to receive authorization from the corporation entity of the Defendant, Peace Lutheran Church, to generally appear as their attorney of record. Plaintiff’s counsel and I agreed to confer as to the status of the Peace Lutheran corporation’s approval of attorney Brenes, as the attorney of record. I stated that, I would provide a reply by September 15, 2022.” (Id., 3:16-23.) On September 1, 2022, Attorney Brenes contracted severe Covid, and was bed ridden for over a month. (Id., 4:12-15.)

Further, Plaintiff’s proof of service indicates that Peace Lutheran was served by substituted service on Janet Torres. (Proof of Service filed on 8/8/22.) Although Plaintiff attaches a Statement of Information from 2021 reflecting that Janet Torres was Peace Lutheran’s agent for service of process (Leverone Decl., Ex. C), Janet Torres has submitted a declaration, attesting that she has never agreed to be an authorized agent for Peace Lutheran, and have never agreed to be the agent for service of process for Peace Lutheran. (Torres Decl., 2:2, 2:9-10, and 2:15-16.) Agents for service of process from 2021-2022 were Irene Jensen and Chastity Carvel. (12/22/22 Carvel Decl., 3:20-21.) Based on the declarations of Torres and Carvel, the court finds that Defendant has overcome the presumption of valid service.

Accordingly, the motion is GRANTED.

Sanctions: “Whenever the court grants relief from a default, default judgment, or dismissal based on any of the provisions of this section, the court may do any of the following: (A) Impose a penalty of no greater than one thousand dollars ($1,000) upon an offending attorney or party. (B) Direct that an offending attorney pay an amount no greater than one thousand dollars ($1,000) to the State Bar Client Security Fund. (C) Grant other relief as is appropriate.” (CCP § 473(c)(1).)

The court declines to impose sanctions against Defendant because substantial justification exists.

II. Carvel’s Motion

Defendant Chastity Carvel moves to set aside its default pursuant to CCP §§ 473 and 473.5.

A default was entered against Defendant Carvel on August 8, 2022. The motion was filed within the 6-month filing deadline, and is timely.

The court accepts Chastity Carvel’s declaration of mistake, inadvertence, surprise, or excusable neglect. (Carvel Decl., ¶¶ 6-11.) During the time of substituted service, and until August 25, 2022, Carvel was in Oregon due to MRSA. (Id., ¶¶ 6, 12.) Carvel became aware of the action on July 23, 2022, when she received Plaintiff’s attorney’s correspondence, but that correspondence did not include a summons and complaint. (Id., ¶¶ 8-9.) Carvel reached out to Attorney Brenes who informed her that Plaintiff’s counsel had agreed to not take the default of Peace Lutheran Church, and Carvel mistakenly believed that stipulation for the corporation related to her as well. (Id., ¶ 11.)

Further, Plaintiff’s proof of service indicates that Carvel was served by substituted service on Janet Torres. (Proof of Service filed on 8/8/22.) However, Janet Torres has submitted a declaration, attesting that she is the owner of Kids Forum Preschool, located at 4523 Tweedy Blvd., Southgate, CA, and Kids Forum Preschool is a separate entity from Peace Lutheran. (Torres Decl., 2:2-8.) Torres also declares that she has never accepted service of a summons and complaint for Chastity Carvel. (Id., 3:1-2.) Therefore, the court finds that Defendant has overcome the presumption of valid service.

Accordingly, the motion is GRANTED.

The court declines to impose sanctions against Defendant because substantial justification exists.

III. Jensen’s Motion

Defendant Irene Jensen moves to set aside its default pursuant to CCP §§ 473 and 473.5.

A default was entered against Defendant Jensen on August 8, 2022. The motion was filed within the 6-month filing deadline, and is timely.

The court accepts Irene Jensen’s declaration of mistake, inadvertence, surprise, or excusable neglect. (Jensen Decl., ¶¶ 6-11.) During the time of substituted service, Jensen was an inpatient at St. Francis Medical Center. (Id., ¶ 7.) Jensen became aware of the action on July 23, 2022, when she received Plaintiff’s attorney’s correspondence, but that correspondence did not include a summons and complaint. (Id., ¶¶ 8-9.) Jensen reached out to Attorney Brenes who informed her that Plaintiff’s counsel had agreed to not take the default of Peace Lutheran Church, and Carvel mistakenly believed that stipulation for the corporation related to her as well. (Id., ¶ 11.)

Further, Plaintiff’s proof of service indicates that Jensen was served by substituted service on Janet Torres. (Proof of Service filed on 8/8/22.) However, Janet Torres has submitted a declaration, attesting that she is the owner of Kids Forum Preschool, located at 4523 Tweedy Blvd., Southgate, CA, and Kids Forum Preschool is a separate entity from Peace Lutheran. (Torres Decl., 2:2-8.) Torres also declares that she has never accepted service of a summons and complaint for Irene Jensen. (Id., 2:21-22.) Therefore, the court finds that Defendant has overcome the presumption of valid service.

Accordingly, the motion is GRANTED.

The court declines to impose sanctions against Defendant because substantial justification exists.