Judge Randolph M. Hammock, Case Number: 24STCV13958, Date: 2024-11-06 Tentative Ruling

Judge: Randolph M. Hammock, Case: 24STCV13958, Date: 2024-11-06 Tentative Ruling

Plaintiff Immigrant Rights Defense Counsel brings this action against Defendant Roy Wolfe III as Trustee of the Roy Wolfe III Revocable Living Trust under the Uniform Voidable Transfers Act. Plaintiff alleges that the Trust is the recipient of a voidable transfer from Brandi Linton, the judgment debtor in related case No. 20STCV42456. The clerk entered Defendant’s default on July 29, 2024.

Defendant Roy Wolfe, as Trustee, moves to set aside his default entered on July 29, 2024. First, Defendant seeks relief under Code of Civil Procedure section 473.5. Code of Civil Procedure § 473.5 subdivision (a) provides:

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.

Relief under section 473.5 is available only where the defendant’s lack of actual notice “was not caused by his or her avoidance of service or inexcusable neglect.” (§ 473.5, subd. (b).)

The Proof of Service reflects service on Defendant Roy Wolfe III, “in his capacity as trustee of the Roy Wolfe III Revocable Living Trust,” by personal service on June 10, 2024. (See 07/29/2024 Proof of Service, ¶ 3(a).) Service occurred at 1524 W 94th Pl., Los Angeles, CA 90047 (the “Premises”). (Id. ¶ 4.)

Defendant contends that he did not have actual notice of this lawsuit because he was never served with process. Defendant submits a declaration with the motion. Notably, he concedes that the Premises “are an asset of the Trust.” (Wolfe Decl. ¶ 2.) However, he states he “do[es] not reside or receive mail there.” (Id. ¶ 3.) More importantly, Defendant attests that he “was not at the Premises on” the day of purported service. (Id. ¶ 4.) Rather, he was in Echo Park for a swim lesson from 8:00 A.M. to 8:30 A.M., and then worked from 9:30 A.M. to 5:30 P.M. at the GroundFloor located at 160 Glendale Boulevard, Los Angeles, California. (Id. ¶ 4.)

Defendant asserts that he “only learned about the lawsuit by talking to a third party.” (Id. ¶ 5.) His “recently retained attorney, The Westmoreland Law Firm, P.C., informed [Defendant] that he had attended an unrelated hearing before Judge Randolph Hammock, whereat Mr. Westmoreland was informed that a default had been entered in this instant action.” (Id. ¶ 5.)

Despite being Trustee, Defendant also contends that he is not the “authorized person” to accept service on behalf of the trust. (Mtn. 7: 20-24.) He asserts Brandi Linton is that person. (Id.) He also suggests service on the Trust “should have been made at 3679 Motor Avenue, Los Angeles, California.” (Mtn. 7: 25-27.)

Here, aside from the self-serving statements made in his declaration, Defendant provides no corroborating evidence to establish his whereabouts on the day of service. A registered process server's declaration of service creates a rebuttable presumption of proper service. (Am. Express Centurion Bank v. Zara (2011) 199 Cal. App. 4th 383, 390.) A trial court is not required to automatically accept a self-serving evidence contradicting the process server’s declaration. (Id.)

It is also worth noting that Plaintiff submits evidence that on April 8, 2022, Defendant provided a homestead declaration for the Premises, indicating under penalty of perjury that the premises was his principal dwelling. (Medvei Decl. Exh. B.) This was submitted two years prior to the service at the location, and there is no guarantee that Defendant still resides there. But under the totality of the circumstances and the lack of competent evidence in rebuttal, it is a factor supporting personal service on Defendant at that location.

Indeed, given the sordid defense pursued by Ms. Linton in the underlying/related case, in which she consistently misrepresented the facts, this Court finds that Defendant Wolfe appears to have follow that same unfortunate path of self-destruction. In short, this Court finds Wolfe’s uncorroborated self-serving statements to be simply untruthful.

Considering the evidence presented, the court concludes that Defendant was personally served at the time and place reflected in the Proof of Service. And because there is no dispute that Wolfe is the trustee of the Trust, service on him was proper to confer jurisdiction over the Trust. (See Powers v. Ashton (1975) 45 Cal.App.3d 783 [a trust can only be a party to litigation through a trustee].

Accordingly, because Defendant necessarily had actual notice of the lawsuit through service of the summons and complaint, relief under CCP section 473.5 is unavailable.

Defendant also moves for relief under CCP section 473(b), based on the contention that he was never served and did not have actual notice. Under the discretionary provisions of Section 473(b), 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.” (CCP § 473(b).) To obtain relief under this provision, the application for relief must be made “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding.” (Ibid.) This type of application must also be “accompanied by a copy of the answer or other pleading proposed to be filed therein.” (Ibid.)

Here, Defendant has not identified any factors demonstrating mistake, inadvertence, surprise, or excusable neglect in his failure to defend the lawsuit. Instead, he doubles-down on the contention that he was never served. As discussed supra, the evidence preponderates that Plaintiff was personally served by a registered process server at the premises on June 10, 2024, but for reasons unknown, failed to respond to the lawsuit. Therefore, Defendant has not demonstrated that relief under section 473(b) is available.

Additionally, in utilizing this Court’s sound discretion as to whether to grant the requested relief [“the Court may…”], this Court has considered whether the policy of liberally having cases heard on their merits requires granting the requested relief. Simply put: IT DOESN’T.

This case is a simple one. It is claimed that Defendant Linton fraudulently transferred her residential property to the Defendant Trust in order to “avoid, hinder or delay” the debt that she actually owed to the plaintiff at that time. Let’s look at the facts: (1) The transfer took place on July 1, 2022; (2) It was apparently a “gift” or without any consideration whatsoever; (3) At that time, Ms. Linton had already lost the underlying/related case, and this Court had just granted an award of attorney’s fees against her for almost a quarter of a million dollars, a few weeks before on June 15, 2022. This is the classic definition of a fraudulent transfer.

Hence, there would serve no legitimate purpose for granting Defendant relief in this case. The amount of attorney’s fees and court costs would simply needlessly grow.

Defendant’s motion also raises objections to the notice of related case and his purported inability to file a peremptory challenge. The court notes the following points for the record.

On June 5, 2024, Plaintiff filed a Notice of Related Case, indicating cases 20STCV42456 and the instant case were related. On June 6, 2024, the court ordered the cases related. Defendant argues the Trust was “deprived of its right to oppose the Notice of Related Case” because the NORC was never served on the Trust, but rather, only The Westmoreland Law Firm, P.C., and because the court ordered the cases related only one day after Plaintiff filed the Notice.

First, the court gave Defendant written notice of the NORC on June 6, 2024. (See 06/06/2024 Certificate of Mailing.) The NORC found, and it still holds true, that the cases are plainly related within the meaning of California Rules of Court, rule 3.300(a). Even if Defendant had been given more time to file a response, it is unclear what response Defendant could have made to the NORC to avoid that inevitable conclusion.

Second, Defendant also asserts that this deprived the Trust of the opportunity to file a peremptory challenge of the judicial officer. That is incorrect. Under CCP 170.6(a)(2), a party has 15 days after its appearance to bring the peremptory challenge. Here, the Trust made its first appearance by filing the instant motion on October 7, 2024. Thus, it had until October 22, 2024 to file a peremptory challenge. It did not do so within that time.