Judge: Steven A. Ellis, Case: 22STCV13723, Date: 2024-12-13 Tentative Ruling

Case Number: 22STCV13723    Hearing Date: December 13, 2024    Dept: 29

Williams v. JNJ Investments, LLC
22STCV13723

Defendant’s Motion to Set Aside Default Judgment

Tentative

The motion is denied

Background

On April 25, 2022, Shantavia Williams (“Plaintiff”) filed a complaint against JNJ Investments, LLC (“Defendant”) and Does 1 through 20 for general negligence and premises liability out of an alleged fall in a parking lot in Gardena, California on November 23, 2020.

On May 3, 2023, the Court granted Plaintiff’s motion to serve Defendant through the Secretary of State pursuant to Corporations Code section 17701.16, subdivision (c).  The proof of such service was filed on December 7, 2023.

The default of Defendant was entered on February 14, 2024.

A default judgment against Defendant was entered on August 22, 2024.

On October 2, 2024, Defendant filed this motion to set aside the default judgment.  Plaintiff filed an opposition on November 21, and Defendant filed a reply on December 3.

Legal Standard

Section 473.5

Code of Civil Procedure section 473.5 provides for relief from a default or default judgment “[w]hen service of a summons has not resulted in actual notice to a party in time to defend the action.”  (Code Civ. Proc., § 473.5, subd. (a).)  The motion must 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.” (Ibid.) 

The motion must be “accompanied by an affidavit showing under oath that the party’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect.”  (Id., subd. (b).)  In addition, the motion must be accompanied by "a copy of the answer ... or other pleading proposed to be filed in the action."  (Ibid.)

Section 473, subdivision (b)

Code of Civil Procedure section 473, subdivision (b) provides for both discretionary and mandatory relief from a judgment or entry of default. 

As to discretionary relief, the statute states: “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 through his or her mistake, inadvertence, surprise, or excusable neglect.”  (Code of Civil Procedure § 473, subd. (b).) Where such an application for discretionary relief is made, the motion must be accompanied by a copy of the answer or pleading proposed to be filed; “otherwise the application shall not be granted.”  (Ibid.)  The application for relief must be made within a reasonable time, and in no case exceeding six months after the judgment. (Ibid.)

The statute also provides for mandatory relief from dismissal, default, or default judgment:

“whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect … unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” 

(Ibid.)

A request for discretionary relief under section 473, subdivision (b), must be made (subject to certain exceptions) “within a reasonable time, in no case exceeding six months.”  (Ibid.)  A request for mandatory relief must be made within six months.  (Ibid.)

Section 472, subdivision (d)

Code of Civil Procedure section 473, subdivision (d), provides (among other things) that the Court may, upon motion, “set aside any void judgment or order.”  “Under section 473, subdivision (d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service.” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.)

Discussion

Defendant seek relief from default judgment under Code of Civil Procedure section 473.5; section 473, subdivision (b); and section 473, subdivision (d).  The Court considers each in turn.

Section 473.5

Defendant contends that service of the summons did not result in actual notice in time to defend the action.  In support of the motion, Defendant presents the declaration of Joseph Ramani, Defendant’s managing member, who states that Defendant’s registered agent for service of process (Leslie Bower) advised Mr. Ramani that she was never served with the summons and complaint.  (Ramani Decl., ¶¶ 3-4.) Mr. Ramani also states that he was never served with the summons and complaint.  (Id., ¶ 6.)  According to Mr. Ramani, the “first notice” of this suit that he received was “receipt of Plaintiff’s Request for Entry of Default Judgment on or about August 16, 2024.”  (Id., ¶ 7.)

Defendant was served under the provisions of Corporations Code section 17701.16, which (under certain circumstances) authorizes service of a limited liability company by delivery to the office of the Secretary of State.  When such service is effected, “the Secretary of State shall give notice of the service of the process to the limited liability company … at its principal office, by forwarding to that office, by registered mail with request for return receipt, the copy of the process.”  (Corps. Code, § 17701.16, subd. (d).)

In its opposition, Plaintiff presents evidence that the Secretary of State’s office complied with its legal requirements and sent, by registered mail, the summons and complaint (and other documents) to Defendant’s principal office on two separate occasions.  (Marchiondo Decl., Exhs. 2-3.)  On each occasion, a signed receipt was returned to the Secretary of State.  (Ibid.)

Defendant does not rebut this evidence in its reply.

Based on the evidence in the record, Defendant has not shown that service of the summons under Corporations Code section 17701.16 did not result in actual notice in time for Defendant to defend the action.  To the contrary, the evidence shows that Defendant had actual notice but chose not to defend; that may have been because it was acting under the mistaken belief that it had not been properly served, but in any event Defendant had actual notice.  To the extent that the declaration of Mr. Ramani is to the contrary, the Court does not credit the declaration.

In addition, and independently, Defendant did not submit, with the motion, a copy of the answer it proposes to file.

For these reasons, Defendant’s request for relief under Code of Civil Procedure section 473.5 is denied.

Section 473, subdivision (b)

Defendant does not present any evidence to support its request for discretionary or mandatory relief under Code of Civil Procedure section 473, subdivision (b). 

In addition, and independently, Defendant did not submit, with the motion, a copy of the answer it proposes to file.

For these reasons, Defendant’s request for relief under Code of Civil Procedure section 473, subdivision (b), is denied.

Section 473, subdivision (d)

Defendant does not present any evidence to support its request for relief under Code of Civil Procedure section 473, subdivision (d).  Service on Defendant was validly effected under Corporations Code section 17701.16.  The judgment was not void.

For this reason, Defendant’s request for relief under Code of Civil Procedure section 473, subdivision (d), is denied.

Conclusion

The Court DENIES the motion of JNJ Investments, LLC to vacate and set aside the default and default judgment in this matter.