Judge Randolph M. Hammock, Case 19STCV11795 2022-08-11 Tentative Ruling

Judge: Randolph M. Hammock, Case: 19STCV11795, Date: 2022-08-11 Tentative Ruling

MOTION TO QUASH SERVICE OF SUMMONS AND TO SET ASIDE AND VACATE DEFAULT AND DEFAULT JUDGMENT BASED ON EXTRINSIC MISTAKE AND EXTRINSIC FRAUD

Plaintiff Rudy Abejuela filed this action against Defendants Edwin Eastman and Lisa Eastman. Plaintiff worked as in-home caregiver for the now deceased Edwin Eastman. Lisa is the daughter of Edwin. Plaintiff alleged that Defendants violated wage and hour laws.

On May 29, 2019, the court entered the Defendants’ defaults. On August 15, 2019, Plaintiff obtained a default judgment “for damages of $579,187.50, attorney fees of $17,765.63, and costs of $565.00 for a total of $597,518.13.” (See Order 08/15/2019.)

Defendant Lisa Eastman now moves to set aside the default judgment and quash the service of summons based on extrinsic fraud or mistake.[1] Plaintiff opposed.

Pursuant to Defendant’s request, the court takes judicial notice of Defendant’s Exhibits 1 through 13, as records of a court of California.

Plaintiff objects to the Declaration and Exhibits of Attorney Saman Benham, the Declaration and Exhibits of Defendant Lisa Eastman, and the Declaration and Exhibits of Non-Party Robin Eastman.

This Court is unaware of any legal authority which requires a court to rule on evidentiary objections on a motion, except as to a motion for summary motion/adjudication (CCP § 437c (q)] or a special motion to strike (CCP § 425.16 (b)(2)); see also, Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-949.)

As such, this court respectfully declines to rule on these objections. This court is well aware of the rules of evidence, and to how much weight, if any, should be given to any of the proposed evidence.

Defendant’s motion is “made pursuant to the Court’s equitable power to set aside defaults and default judgments based on extrinsic mistake and extrinsic fraud.” (Notice 2: 1-2.)

“[E]ven where relief is no longer available under statutory provisions, a trial court generally retains the inherent power to vacate a default judgment or order on equitable grounds where a party establishes that the judgment or order ... resulted from extrinsic fraud or mistake.” (County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1228.) “[T]he party seeking equitable relief on the grounds of extrinsic fraud or mistake must show three elements: (1) a meritorious defense (2) a satisfactory excuse for not presenting a defense in the first place; and (3) diligence in seeking to set aside the [order] once discovered.”

Defendant contends “in early 2015”, her father (“decedent”) was diagnosed with early on-set Alzheimer's Disease and Dementia, and “for all intents and purposes was physically incapacitated as well and was for the most part bed-ridden.” (Mtn. 7: 7-9.) Defendant states that Plaintiff “ABEJUELA as a care taker developed a confidential relationship with DECEDENT, ingratiated himself with DECEDENT and MOVANTS and induced them to wholly trust and depend on ABEJUELA for DECEDENT’s care.” (Mtn. 5: 9-11.) Plaintiff then filed this lawsuit and “concealed the lawsuit and default from LISA, ROBIN and DECEDENT by purporting to serve process which he knew DECEDENT could no longer comprehend at DECEDENT’s residence, where ABEJUELA was in charge of collecting the mail and where he knew that LISA did not reside.” (Mtn. 5: 20-23.) It appears Plaintiff worked in this role until June of 2019, right after the court entered Defendants’ defaults. On March 9, 2021, Plaintiff filed a petition for probate seeking his appointment as Administrator of the Decedent’s estate. That matter is LASC Case No. 21STPB02183.

As an initial matter, Defendant contends she was never served with the summons and complaint. Although the April 17, 2019, Proof of Service reflects that Defendant was personally service at 4:00pm[2] at her father’s home, Defendant contends she was at work during this time. (L. Eastman Decl. ¶ 34; Exh. B.) The proof of service on the summons and complaint shows personal service on Defendant Lisa Eastman on April 17, 2019 at 4:00pm, at the decedent’s home—13226 S. Jefferson Ave in Hawthorne, CA. (See Proof of Service; D’s RJN Exh. 2.)

Defendant also contends that service on Edwin was ineffective because he experienced onset dementia and Alzheimer’s, which rendered him effectively incompetent. The proof of service on the summons and complaint showing personal service on the Decedent is identical to that for Lisa Eastman—April 17, 2019 at 4:00pm, at the decedent’s home—13226 S. Jefferson Ave in Hawthorne, CA. Defendant contends the decedent was effectively incapacitated at this time and could not have been served.

The process server was Tracey Turner of Turner’s Attorney Service. Defendant’s counsel states that his attempts to communicate with Turner have been unsuccessful. Turner submitted a declaration for Plaintiff, however, in which she stands by the proofs of service. Turner states that “[o]n April 17, 2019, at approximately 4:00 p.m., I personally served Lisa Eastman and Edwin Eastman at 13226 S. Jefferson Ave., Hawthorne, CA 90250, as reflected on my proofs of service. As is the normal practice, I would never provide a proof of personal service unless the individual served with the lawsuit was present at the time of service.” (Turner Decl. ¶ 13.)

Defendant’s contention that she was not served is unconvincing. Defendant’s only evidence is a time-card purporting to show that she had been scheduled to work that day from 3:45 pm until 11:00 pm, and thus could not have been served at 4:00 pm. (See Exh. B.) There are numerous explanations that could explain the “discrepancy”—maybe Defendant was late for work, rescheduled her shift, or some other of numerous possibilities. This evidence is simply too speculative, and this court gives it little, if any, weight. Defendant’s attempts to portray collusion between Plaintiff and the process server are also unconvincing. Of course a process server accused of falsifying service would file a declaration with the party opposing that assertion. Indeed, it might raise an eyebrow if she did not.

Second, Defendant’s argument that she was unaware of this proceeding is not credible. Defendant appeared in the probate proceeding in April 2021 (LASC No. 21STPV02183), and it is frankly unbelievable that she could be aware of one without the other. For these reasons, this court concludes Defendant was not diligent in seeking relief. Finally, Defendant says that she did not learn of the default judgment until December 2021. (L. Eastman Decl. ¶ 33.) As explained herein, this contention is not credible. But even if it was, that would mean Defendant waited approximately six months to seek relief. In the face of a default judgment, even this delay is unreasonable.

Because Defendant has not shown a satisfactory excuse for not presenting a defense, or diligence in seeking to set aside the judgment once discovered, this court need not address whether Defendant has a meritorious defense to the action.

“A defendant . . . may serve and file a notice of motion for one or more of the following purposes: (1) [t]o quash service of summons on the ground of lack of jurisdiction of the court over him or her . . . .” (Code Civ. Proc., § 418.10, subd. (a).) “[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.]” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) “[T]he filing of a proof of service creates a rebuttable presumption that the service was proper” but only if it “complies with the statutory requirements regarding such proofs.” (Id. at pp. 1441-1442.) When a defendant moves to quash service of the summons and complaint, the plaintiff has “the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.” (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868.) “A court lacks jurisdiction over a party if there has not been proper service of process.” (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.)

The filing of a proof of personal service meeting the statutory standards under section 417.10 creates a rebuttable presumption that service was proper. (See Dill v. Berquist Const. Co. (1994) 24 Cal.App.4th 1426, 1441–1442.) As explained above, there is nothing to suggest that the proofs of service filed in this matter were falsified. Defendant’s only evidence purporting to show otherwise is a time schedule showing she was scheduled to work during that time. This is insufficient to show improper service. Moreover, the fact that the proofs of service show that service on both Defendants occurred at the same time is not suspicious or unlikely—rather, it is to be expected when two persons are served in the same place.

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

[1] Robin Eastman, who is the son of Decedent Edwin Eastman, is not a Defendant in this action. However, Robin attempts to join this motion as a moving party. Robin contends he has standing to join this motion as “an heir at law entitled to half of [Edwin’s] estate.” (Mtn. 6: 16.) This determination is ultimately irrelevant for purposes of this motion, and this court need not resolve that issue now.

[2] Defendant also attempts to raise an issue with the service forms showing service on her and her father occurring at the same time. Defendant “wonder[s] if the process server lined up the two defendants, side-by-side, and simultaneously extended both her left and right hand and thus served each defendant at the exact same time.” (Reply 3: 11-13.) Like most of Defendant’s argument, this attempts to make something out of nothing. Of course both Defendants were served on or about the same time—they were in the same house.