Judge: Stephen I. Goorvitch, Case: 23STCV06375, Date: 2023-10-31 Tentative Ruling
Case Number: 23STCV06375 Hearing Date: February 1, 2024 Dept: 39
US
1902 Wilshire Owner, LLC v. Juang Jan Thiankham, et al.
Case
No. 23STCV06375
Motion
to Set Aside Defaults and Default Judgment
Case
Management Conference
Motion
for Reconsideration
Plaintiff US
1902 Wilshire Owner, LLC (“Plaintiff”) filed this action against Defendants
Juang Jan Thiankham; Kamolnut Thiankham; Songpon Thiankham; Thai Dishes, Inc.;
and TD Wilshire, Inc. (collectively, “Defendants”). Plaintiff’s counsel filed five proofs of
service on April 7, 2023, indicating that the three individual defendants were
served personally, and the two entity defendants were served through the agent
for service of process (who is one of the individual defendants). Plaintiff’s counsel used registered process
servers for service of process.
Plaintiff then obtained entry of defaults and a default judgment in the
amount of $630,468.89. The default
judgment was entered on September 18, 2023.
Defendants
filed an ex parte application to stay enforcement of the judgment under Code of
Civil Procedure section 918(a) and to return all funds that were seized from
Defendants’ bank accounts. The Court
granted the ex parte application with respect to staying enforcement of the
judgment but denied the ex parte application with respect to returning the
funds. Instead, the Court ordered that
any levied funds shall be held in Plaintiff’s counsel’s client trust account.
Now, Defendants
move to set aside default and default judgment under Code of Civil Procedure
section 473(d) and 473.5. The motion was
filed on January 9, 2024, and raises two grounds: (1) Defendants were not
served, and (2) The default judgment is void.
The Court grants the motion. The
defendants all provide declarations stating that they could not have been
served personally because they were outside the State of California on March
24, 2023, when they were purportedly served, and only learned about this
lawsuit after the default judgment was entered.
The defendants provide their travel itineraries.
In addition, Defendants rely on the
declaration of the manager of Thai Dishes, who states that no process server
came to the restaurant on March 30, 2023.
Moreover, the process server appears to have listed the wrong gender for
each individual. (See Declaration of
Keith Williams, ¶¶ 2-5.) The process
server identifies Juang Jan Thiankham as a male, but she is actually
female. (See Declaration of Kamolnut
Thiankham, ¶¶ 16-18.) The process server
identifies Kamolnut Thiankham as a male, but she is actually female. (See id., ¶ 22; see also Declaration of Juang
Jan Thiankham, ¶ 10.) The process server
identified Songpon Thiankham as female, but he is actually male. (See Declaration of Songpon Thiankham, ¶ 16
& Exh. E.)
Plaintiff’s
counsel argues that Defendants must have known about this action before filing
the motion. That is not relevant. Plaintiff also argues that others must have
identified themselves as the individual defendants. Not only is this speculation, but even if
true, it is not a basis to deny the motion, as the individual defendants were
not personally served.
In addition,
the default judgment is void because Plaintiff’s counsel sought damages of
$451,779.14 but sought a default judgment for “damages” in the amount of
$495,643.60. Therefore, the default
judgment is void.
Based upon the
foregoing, the Court orders as follows:
1. The Court grants Defendants’ motions to
set aside default and default judgment.
2. The Court denies its own motion for
reconsideration as moot.
3. The Court orders Plaintiff and
Plaintiff’s counsel to return all levied funds to Defendants, by and through
counsel.
4. The Court orders the parties to
meet-and-confer concerning service and case management issues.
5. The Court continues the case management
conference to May 15, 2024, at 8:30 a.m.
6. Defendants’ counsel shall provide
notice and file proof of such with the Court.