Judge: Ronald F. Frank, Case: 24TRCV02026, Date: 2025-01-24 Tentative Ruling

Case Number: 24TRCV02026    Hearing Date: January 24, 2025    Dept: 8

Tentative Ruling

HEARING DATE: January 24, 2025

CASE NUMBER: 24TRCV02026

CASE NAME: County of Los Angeles v. Tyler Choate, et al.

MOVING PARTY: Defendants, Amber Choate and Donna McClenahen

RESPONDING PARTY: Plaintiff, County of Los Angeles

TRIAL DATE: Not Set.

MOTION: (1) Motion to Set Aside Default

Tentative Rulings: (1) GRANTED. Discuss whether defense counsel will now agree to accept service for Ms. Choate and will be filing a responsive pleading

I. BACKGROUND

A. Factual

On June 17, 2024, Plaintiff, County of Los Angeles(“Plaintiff”) filed a complaint against Defendants, Tyler Choate, Donna McClenahen, Amber Choate, and DOES 1 through 10. The complaint alleges causes of action for: (1) Motor Vehicle Negligence; and (2) Intentional Tort.

On October 21, 2024, on application by the Plaintiff, the Clerk entered default against Defendants, Tyler Choate and Amber Choate.

Now, Defendants Amber Choate has brought this Motion to Set Aside Entry of Default against her.

B. Procedural

On December 30, 2024, Defendant Amber Choate filed a Motion to Set Aside Default. On January 10, 2025, Plaintiff filed an opposition brief. On January 16, 2025, Defendant Amber Choate filed a reply brief.

II. ANALYSIS

A. Legal Standard

Pursuant to Code of Civil Procedure section 473(b), both discretionary and mandatory relief is available to parties from a judgment, dismissal, order, or other proceeding.

Discretionary relief is available under the statute as “the court may, upon any terms as may be just, relieve a party or his or her legal representative from judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. (Code of Civ. Proc. §¿473(b).) Alternatively, mandatory relief is available when “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.” (Ibid.) Under this statute, an application for discretionary or mandatory relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought. (Code Civ. Proc., § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

“‘[W]hen relief under section 473¿is¿available, there is a strong¿public¿policy¿in¿favor¿of granting relief and allowing the requesting party his or her day in court…[Citation.]” (Rappleyea v. Campbell¿(1994) 8 Cal. 4th 975, 981-82.)

B. Discussion

Defendant Amber Choate brings this motion on the grounds that she asserts the Entry of Default is void because she was never validly served with a summons in this case. Choate moves on the basis of Code of Civil Procedure section 473, subdivision (d) which states, “[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 wither party after notice to the other party, set aside any void judgment.” (Code Civ. Proc., § 473, subd. (d).) Choate states that the default judgment entered without a valid service of summons violates due process and is void as a matter of law, not merely voidable.

The service of summons filed by Plaintiff as against Amber Choate states that she was served via substitute service at 14916 Sutro Ave., Gardena, CA 90249-3643, by giving the service papers to Defendant, Donna McClenahen. However, Amber Choate wrote in her declaration that she has not lived at that address for almost ten (10) years, does not work at that address, and that the address is the residence of Donna McClenahen. (Declaration of Amber Choate (“Choate Decl., ¶¶ 3-4.) Ms. Choate, also declares that she has never authorized Donna McClenahen to receive any legal summons on her behalf, and that she has not been personally served with any summons or complaint in this case, nor has she received any such documents in the mail. (Choate Decl., ¶¶ 5-7.)

In opposition, Plaintiff argues that substituted service on Amber Choate fully complied with the statutory requirements. Plaintiff states that on October 22, 2024, in response to the assertion by Mr. Bordin-Wosk, attorney for Defendants, Donna McClenahen and Amber Choate, that service was not validly effectuated on Amber Choate, counsel for Plaintiff requested his Process Server to provide a declaration due to an ongoing service dispute and wanted to confirm that McClenahen made a statement to the effect that Ms. Choate resided at the Garden Address. The Process Server, Mr. Verjan, reviewed his notes and provided that on October 28, 2024, Declaration of Diligence with more details that stated, “PER DONNA McCLENAHEN, CO-OCCUPANT TO AMBER CHOATE, VERIFIED SUBJECT DOES LIVE HERE AND IS NOT HOME AT THIS TIME.” (Plaintiff’s Exhibit 15.)

In the face of conflicting statements of fact by the process server versus the defaulted defendant, the Court will err on the side of the public policy favoring dispositions on the merits. While the Court GRANTS the Motion to Set Aside default judgment, the Court will inquire as to whether Ms. Choate’s counsel will accept service and will agree to file a responsive pleading in the next 30 days.

III. CONCLUSION

For the foregoing reasons, Defendant, Amber Choate’s Motion to Set Aside Default Judgment is GRANTED.

Unless waived, Defendants are ordered to provide notice.