Judge: Stephen P. Pfahler, Case: 24STCV20560, Date: 2025-03-25 Tentative Ruling

Case Number: 24STCV20560    Hearing Date: March 25, 2025    Dept: 68

Dept. 68

Date: 3-25-25 a/f 8-6-25 (2-18-25 ex parte order)

Case #24STCV20560

Trial Date: N/A

VACATE DEFAULT

MOVING PARTY: Defendant, Richard Randle

RESPONDING PARTY: Plaintiff, Cheryl Donaldson

RELIEF REQUESTED

Motion to Vacate Default

SUMMARY OF ACTION

On August 13, 2024, Plaintiff Cheryl Donaldson filed a complaint against Defendant Richard Randle dba Randle Construction for Breach of Contract, Statutory Abandonment, Statutory Violation—Advanced Payment, Fraud and Negligence. On September 30, 2024, the clerk entered a default against Defendant. On November 22, 2024, the court entered default judgment for $172,754.

RULING: Denied without Prejudice or Continued.

Defendant Richard Randle moves to vacate the September 30, 2024, and November 22, 2024, entered default and default judgment on grounds of lack of actual notice of the complaint, or alternatively on grounds of mistake, inadvertence, and/or excusable neglect. Plaintiff Cheryl Donaldson in opposition asserts service was proper, the motion lacks support under the improper service standard, and lacks evidence of mistake, inadvertence or support. Defendant in reply contends that “prior actions” in no way constitutes notice of an active lawsuit, reiterates the lack of service legal position, and the timely request for relief under the mistake, inadvertence or excusable mistake standard. Defendant denies any prejudice. Defendant also incorporates a copy of a proposed answer.

The subject motion was filed on February 13, 2025, with a reserved date of August 6, 2025. On February 18, 2025, the court specially advanced the motion to March 25, 2025. Defendant filed amended notice of the hearing on February 20, 2025.

Defendant Randle moves for relief on grounds of denial of service or alternatively mistake, inadvertence and/or excusable neglect. The only statutory section cited is the relief standard under Code of Civil Procedure section 473 subdivision (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. 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.”

The motion was filed within both six months of the default and judgment (four months and 19 days). Defendant cites to the mandatory standard. “The six-month time limit for granting statutory relief is jurisdictional and the court may not consider a motion for relief made after that period has elapsed. (Citation.) The six-month period runs from entry of default, not entry of judgment.” (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.) “[A] trial court is obligated to set aside a default, default judgment, or dismissal if the motion for mandatory relief (1) is filed within six months of the entry of judgment, (2) ‘is in proper form,’ (3) is accompanied by the attorney affidavit of fault, and (4) demonstrates that the default or dismissal was in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.’” (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 443.) The mandatory standard is NOT applicable in that no attorney was involved in any form of representation of Defendant at the time of the entry of either the default or default judgment. [Declaration of Richard Randle, ¶¶ 2-4.]

A discretionary standard therefore applies to the motion given the lack of an attorney statement and dependence on the individual parties’ explanations. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1251-1252; see Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 727.) In considering service of process, a plaintiff has the initial burden to establish valid statutory service of a summons and complaint. (Dill v. Berquist Const. Co., Inc. (1994) 24 Cal.App.4th 1426, 1439-40; Floveyor Internat. v. Sup. Ct. (1997) 59 Cal.App.4th 789, 794.) The August 27, 2024, proof of service on Richard Randle was executed by a licensed process server via personal service on August 22, 2024. Service was completed at 9:51 p.m. at 13838 Roper Ave., Norwalk, CA 90650. “The return of a process server registered [under] Division 8 of the Business and Professions code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.” (Evid. Code, § 647.)

In the declaration denying any service, Randle redacts the address of Randle Construction from the January 22, 2025, dated letter from the Contractors State License Board (CSLB). Randle and counsel otherwise offer NO denial as to the validity of the address, or the description of the person served in the proof of service. The address appears valid given the July 15, 2022, demand letter from Plaintiff to the same address, and an unredacted copy of the CSLB letter informing Randle of the $172,754 address mailed to the same address. Given Randle, under penalty of perjury admits to receiving said letter, presumably at the mailing address, the service address appears valid and undisputed. The court therefore finds the proof of service valid. (Code Civ. Proc., § 415.10.)

The court finds no basis of evidence for a finding of relief under the discretionary standard based on mistake, inadvertence or excusable neglect. The declaration indicates a belief that “the matter was resolved after the CSLB resolution and payment from my bond company” thereby indicating a deliberate and strategic decision. [Randle Decl., ¶ 7.] Defendant in reply suggests the existence of a “prior” action as a separate and independent event, but the presumed reference to the CSLB board action still lacks sufficient accounting for the presumption of valid service and failure to address the opposition position. Public policy vests the court with discretion to provide relief, but the court finds no basis for relief under such circumstances. (Benedict v. Danner Press (2001) 87 Cal.App.4th 923, 929-930; Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1251-1252.) Again, the motion and reply lack of sufficient support regarding the denial of service.

The motion otherwise lacks any citation to the standard for lack of service under Code of Civil Procedure section 473.5, which provides in part:

“(a) 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.

…

“(c) Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.”

Even if Judgment Debtor cited to this section, again, the court finds no credible showing of a lack of notice.

Judgment Debtor also seeks relief under due process standards. A trial court can set aside a judgment pursuant to 473, subdivision (d) on a void judgment. (Talley v. Valuation Counselors Group, Inc. (2010) 191 Cal.App.4th 132, 146.) “A court can lack fundamental authority over the subject matter, question presented, or party, making its judgment void, or it can merely act in excess of its jurisdiction or defined power, rendering the judgment voidable.” (In re Marriage of Goddard (2004) 33 Cal.4th 49, 56.) “A judgment is void if the court lacked jurisdiction over the subject matter or parties, for example, if the defendant was not validly served with summons.” (Johnson v. E-Z Ins. Brokerage, Inc. (2009) 175 Cal.App.4th 86, 98.) The lack of any showing of invalid service prevents a finding a void judgment.

Public policy still favors adjudication on the merits. The court will therefore allow Randle a renewed opportunity to timely seek relief rather than force a potential statutory ban and depend on reliance through other common law doctrine not addressed in this order. The court presents Randle with three options: continuance of the hearing with allowance for submission of a supplemental brief and declaration, and opportunity of Judgment Creditor to respond; denial of the motion without prejudice thereby allowing a timely renewed motion; or denial of the motion for purposes of pursuing a writ of mandate.

Depending on the statute, 180 days from the default from the September 30, 2024, default date falls on Saturday March 29, 2025, and six months from the default date is Sunday March 30, 2025. With the court holiday on Monday March 31, 2025, both deadlines for a renewed motion extend to April 1, 2025. With the subject hearing date, the court will set any supplemental briefing schedule well after the cutoffs in that the court will set any opposition deadline under statutory guidelines. Any renewed motion must be reserved and filed with the court no later than April 1, 2025. A reserved date still requires a filed motion.

Any supplemental brief or renewed motion will allow Randle to take into account the standards presented, and present an explanation under penalty of perjury regarding the continued denial of service with actual objectively supportable proof objectively countering the sworn declaration of the process server and statutory presumption of validity regarding the execution of service, or perhaps acknowledgment of service and a more thorough explanation regarding the misunderstanding of the ongoing legal process until notice from the CSLB and discussion with counsel. The court acknowledges the copy of a proposed responsive document with the reply and invites the resubmission of said proposed answer in case of a new hearing.

Defendant to give notice to all parties.