Judge Robert S. Draper, Case 22STCV04567 2023-04-18 Tentative Ruling

Plaintiff Eric Shaub Mori (“Plaintiff”) and defendants Joe Connolly (“Joe”) and Jeri Connolly (“Jeri” and together, “Defendants”) were involved in prior litigation (the “Underlying Case”) in this Court. (Compl. ¶ 2.) In the Underlying Case, default judgment was entered for Defendants against Plaintiff. (Ibid.)

The default judgment in the Underlying Case is void, as the Statement of Damages supporting default judgment was not properly served on Plaintiff. (Compl. ¶ 14.) Additionally, the allegations of the Complaint in the Underlying Case were insufficient to establish a claim against Plaintiff. (Compl. ¶ 20.)

On February 7, 2022, Plaintiff filed the Complaint asserting a single cause of action for Collateral Attack to Set Aside Void Judgment.

On August 8, 2022, Plaintiff filed Proofs of Personal Service as to Defendants indicating that they were personally served at 1143 S. Hayworth Ave., Los Angeles, CA 90035 on March 6, 2022.

Rule 3.1354 requires the objecting party to “Quote or set forth the objectionable statement or material and . . . state the grounds for each objection to that statement or material.”

Here, Plaintiff lists nearly every paragraph of Joe’s declaration and generically states at the bottom “Lacking foundation, hearsay, conclusory, argumentative, irrelevant” without providing any indication as to which objection applies to which piece of evidence.

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.

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.

It is well established that trial courts should be liberal in granting relief under section 473. (See Kisling v. Otani (1962) 201 Cal.App.2d 62, 66; Brown v. Martin (1914) 23 Cal.App. 736, 739.) This is because the law favors resolution of cases on the merits. (See Jones v. Lindsey (1952) 114 Cal.App.2d 237, 239; Brown, supra, 23 Cal.App. at 739.) “Even in a case where the showing under section 473 is not strong, or where there is any doubt as to the setting aside of a default, such doubt should be resolved in favor of the application [of section 473 relief.]” (Arnke v. Lazzari Fuel Co. (1962) 202 Cal.App.2d 278, 281.)

Here, Defendants contend that they have not lived at the address where they were allegedly served since 2006. (Connolly Decl. ¶ 20.) To support this contention, Defendants note that Plaintiff served Defendants at a different address in a related case in 2020. (Id. ¶ 23.) Defendants note that Joe listed his correct address in the caption of the Answer in that matter. (Id. ¶ 24; Ex. F.) Additionally, Defendants attest that they filed a forwarding address from that address to their current address and renewed that forwarding address with the United States Postal Service. (Id. ¶ 26.)

In Opposition, Plaintiff notes that Plaintiff’s Proof of Service was signed by a registered process server, and therefore a presumption of validity exists as to proper service. (Evidence Code § 647.)

Additionally, Plaintiff contends that the instant motion was not filed within a reasonable time as required by Code of Civil procedure section 473. Plaintiff notes that default was entered on August 8, 2022, roughly three months before Defendants filed the instant motion.

However, section 473.5 explicitly states that a reasonable time shall not exceed the shorter 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.” Here, neither of those deadlines has passed.

The Court finds that Defendants have overcome the presumption of validity created by a registered process server’s attestation to the proof of service. Additionally, the Court finds that the instant motion has been filed within a reasonable time.

Accordingly, Defendants’ Motion to Set Aside Default is GRANTED pursuant to California Code of Civil Procedure section 473.5. Defendants’ Answer filed with their motion will serve as their responsive pleading.

Finally, in their motion Defendants note that Plaintiff’s Counsel of Record is no longer eligible to practice law in California. While this is not relevant to the instant matter, the Court notes that the Opposition to the instant motion was filed by W. Randall Sgro, while Andrew Peter Altholz remains the Counsel of Record in this action.

At hearing, the Court will inquire as to the current status of Plaintiff’s representation, and if necessary, set an OSC re: Plaintiff’s Representation.

Defendants’ Motion to Set Aside Default is GRANTED. The Answer filed with Defendants’ motion is to serve as their responsive pleading.