Judge Peter A. Hernandez, Case Number: 22PSCV00787, Date: 2023-07-24 Tentative Ruling

Defendant Duron Trucking Services, Inc.’s Motion to Set Aside the Default and Default Judgment 2 is DENIED.

Plaintiff Mediterranean Shipping Company (USA) Inc. (“Plaintiff”) alleges as follows:

On February 19, 2020, Plaintiff and Defendant Duron Trucking Services, Inc. (“Defendant”) entered into a Uniform Intermodal Interchange and Facilities Access Agreement (“Agreement”). On or about February 12, 2022, Defendant breached the Agreement.

On July 28, 2022, Plaintiff filed a complaint, asserting a cause of action against Defendant and Does 1-10 for:

“When service of a summons has not resulted in actual notice to a party in time to defend 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.” (Code Civ. Proc., § 473.5, subd. (a).)

The motion must 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” and by a copy of the proposed responsive pleading. (Code Civ. Proc., § 473.5, subd. (b).)

Code of Civil Procedure § 473.5 “is designed to provide relief where there has been proper service of summons (e.g., by substitute service or by publication) but defendant nevertheless did not find out about the action in time to defend. Typically, these are cases in which service was made by publication.” (See Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2022) ¶ 5:420).

Relief under Code of Civil Procedure section 473 is either discretionary or mandatory. A party may seek discretionary relief under section 473(b) due to “mistake, inadvertence, surprise, or excusable neglect.” (Code Civ., Proc., § 473, subd. (b).) A motion for discretionary relief must be made “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken” and must be accompanied by a copy of the proposed responsive pleading. (Code Civ., Proc., § 473, subd. (b).)

Defendant moves the court, per Code of Civil Procedure §§ 473.5 and 473, subdivision (b), for an order setting aside the entry of default and default judgment, on the basis that “Defendant was never properly served the Complaint, the Request for Entry of Default, the Default Judgment package, or provided Notice of the Entry of Default or Default Judgment” and that it would be “in the interest of equity and fairness.”

The court declines to rule on Plaintiff’s evidentiary objections as unnecessary to the court’s ruling.

The motion is denied. On March 3, 2023, Defendant filed a previous “Motion to Set Aside the Default and Default Judgment” (“Motion #1”) which the court heard and took under submission on June 5, 2023. The notice of Motion #1 indicated that relief was sought “pursuant to Code of Civil Procedure section 473.5 and 473(b), as the Defendant was never properly served the Complaint, the Request for Entry of Default, the Default Judgment package, or provided Notice of the Entry of Default or Default Judgment” and “in the interest of equity and fairness.”

The court issued its ruling denying Motion #1 on June 9, 2023, the same day the instant motion was filed.

Defendant’s motion, to the extent it is based on Code of Civil § 473, subdivision (b), is summarily denied for failure to comply with Code of Civil Procedure § 1008[1] requirements. (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4^th 830, 842 [“Nothing in the language or legislative history of those statutes suggests the Legislature has ever understood that motions for relief from default (§ 473(b)) are exempt from the requirements generally applicable to renewed motions (§ 1008)”].) The motion is also untimely under § 473, subdivision (b), as the motion was filed on June 9, 2023 in excess of six months after the November 15, 2022 entry of default.

Motion #2, to the extent it is based on Code of Civil Procedure § 473.5, is likewise summarily denied for failure to comply with Code of Civil Procedure § 1008 requirements.

The court notes that Defendant in Motion #2 contends that it “was not served with the Summons and Complaint.” (Motion, 4:24). This is a Code of Civil Procedure § 473, subdivision (d) argument, which was not raised in the notice of motion. Defendant likewise made this contention in Motion #1 but failed to raise same in the notice of motion there. The court, in its previous analysis on Motion #1, nevertheless addressed Defendant’s improper service argument as follows: “At any rate, the proof of service filed with the court on October 19, 2022 reflects that service was effectuated via substitute service on Defendant’s registered agent, Cain Associates. (Booska Decl., ¶ 3, Exh. B.) Defendant has not provided the court with a declaration from anyone at Cain Associates disavowing service.” Motion #2, to the extent it is based on Code of Civil Procedure § 473, subdivision (d), is summarily denied for failure to comply with Code of Civil Procedure § 1008 requirements.

[1] Code of Civil Procedure § 1008, subdivision (b) provides as follows: “A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion.”