Judge: Peter A. Hernandez, Case: 23PSCV01975, Date: 2024-04-04 Tentative Ruling

Case Number: 23PSCV01975    Hearing Date: April 4, 2024    Dept: K

Defendant Vanessa Campa’s Motion to Set Aside Default is DENIED.

Background   

Plaintiff Billy Jaite (“Plaintiff”) alleges as follows:

Plaintiff and Vanessa Campa (“Defendant”) were in a relationship from approximately May 2017-April 2022. Defendant has been unemployed since November 2018. During Plaintiff’s and Defendant’s relationship, Plaintiff grew close to Defendant’s daughter, Victoria Isabela Fernandez (“Victoria”). Plaintiff paid Defendant’s rent from approximately October 2017 to November 2022, in large part to ensure Victoria would not be homeless. Throughout the years Plaintiff and Defendant had numerous discussions about establishing a trust for Victoria’s exclusive benefit. After Plaintiff and Defendant ended their relationship, Plaintiff made four transfers to Defendant in November and December 2022 totaling $350,000.00, with the mutual understanding and oral agreement that these transfers would be put into the trust established for Victoria. Defendant has ceased all communication with Plaintiff. Defendant is living off the monies and has failed to establish the trust.

On June 30, 2023, Plaintiff filed a complaint, asserting causes of action against Defendant for:

1.                  Specific Performance of Contract

2.                  Breach of Contract

On August 17, 2023, Defendant’s default was entered.

A Status Conference is set for May 6, 2024.

Legal Standard

“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 . . .” (Code Civ. Proc., § 473, subd. (b).)

Discussion

Defendant moves the court for an order setting aside the default entered against her, on the basis that she was “not validly served with process of the Summons and did not receive actual notice she was a named party in this matter in time to defend against the action.” (Motion, 1:26-28).

Request for Judicial Notice

The court grants Plaintiff’s Request for Judicial Notice. (Stepan v. Garcia (1974) 43 Cal.App.3d 497, 500 [“The court may take judicial notice of its own file”].)

Merits

Defendant cites to Code of Civil Procedure § 473, subdivision (b) as the basis of her motion (See Motion, 1:28-2:1 and 3:20-4:12); however, it appears from the foregoing language that Defendant is arguing improper service, which is a subdivision (d) argument (i.e., “[t]he court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order”) or possibly a lack of actual notice, which is a Code of Civil Procedure § 473.5 argument generally used in instances where service was made via publication. Defendant also references surprise and extrinsic fraud in on page 4 of the motion.

Defendant’s motion, however, is not accompanied by any declaration whatsoever, either disavowing valid service or setting forth facts supporting her argument based on actual notice, surprise and extrinsic fraud. At any rate, the proof of service filed July 12, 2023 reflects that substituted service pursuant to Code of Civil Procedure § 415.20, subd. (b)[1] was effectuated on July 7, 2023 via Co-Occupant Paloma Gonzales (“Gonzales”) at 990 N. Park Ave., #205 (“Park Avenue Address”) in Pomona by registered process server “E. Ratliff.” (RJN, Exh. 3).

Plaintiff attests that he was involved in a romantic relationship with Defendant from around May 2017 until April 2022, that Gonzales is Defendant’s sister, that Defendant’s residence and only address is the Park Avenue Address and that he is not aware of any other mailing or residential address for Defendant. (Plaintiff’s Decl., ¶¶ 2-4). A “Declaration of Diligence” attached to the proof of service reflects that three previous service attempts were made before the substitute service. (RJN, Exh. 3). The process server further attested in the proof of service that mail service was made on July 7, 2023, after substitute service. (Id.)

The motion, then, is denied.