Judge: Steven A. Ellis, Case: BC609940, Date: 2024-08-07 Tentative Ruling
Case Number: BC609940 Hearing Date: August 7, 2024 Dept: 29
Motion to Set Aside Entry of Default filed by Defendants
Jonathan Andrade and Jennifer Andrade.
Tentative
The motion is denied.
Background
On February 10, 2016, Plaintiff Trevous
Milhouse (“Plaintiff”) filed the complaint in this action against Defendants
Bkldmnds, Inc., The Escarpment, and Does 1 through 50.
On August 1, 2017, Plaintiff amended the
complaint to correct the name of the first named defendant to Bkldmnds, Inc.
On May 23, 2018, there was no appearance at a
hearing on an Order to Show Cause re Dismissal, and the Court dismissed the
case. The dismissal was set aside, on Plaintiff’s
motion, on August 27, 2018.
In August and September 2019, Plaintiff amended
the complaint to name Jennifer Krystal Andrade as Doe 1; Jonathan Andrade as
Doe 2; Ho Min Song Co. Trust as Doe 3; Song and Kim Trust as Doe 4; 5610 Soto
LLC as Doe 5; and Three 6 Mafia as Doe 6.
As it relates to the matter set for hearing
on August 7, the Clerk entered the default of Jennifer Andrade and Jonathan
Andrade on July 29, 2020.
On December 9, 2020, the Court, at the
request of Plaintiff, entered the dismissal of all causes of action in the
complaint asserted against Jennifer Krystal Andrade, without prejudice.
Default judgment was entered against Jonathan
Andrade, 5610 Soto LLC, and Escarpment on February 3, 2022.
A notice of assignment of judgment to P.C.
Liang, appearing in pro per, was filed on October 31, 2023.
On June 27, 2024, Jonathan Andrade and
Jennifer Andrade filed this motion, in pro per, to set aside the default and
default judgment.
No opposition has been filed.
Legal Standard
Code of Civil Procedure section 473,
subdivision (b), provides:
“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…” (Code Civ. Pro., §473, subd. (b).)
To qualify for relief under section 473,
the moving party must act diligently in seeking relief and must submit
affidavits or testimony demonstrating a reasonable cause for the
default. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 234.)
“In a motion under section 473 the initial
burden is on the moving party to prove excusable neglect by a “preponderance of
the evidence. [Citations]”” (Kendall v. Barker (1988) 197 Cal.App.3d
619, 624.) “The moving party has a double burden: He must show a satisfactory
excuse for his default, and he must show diligence in making the motion after
discovery of the default.” (Id. at 625.)
An alternative basis for setting aside a
default or default judgment appears in Code of Civil Procedure section 473.5,
which states:
“(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.
(b) A notice of motion to set aside a default
or default judgment and for leave to defend the action shall designate as the
time for making the motion a date prescribed by subdivision (b) of Section
1005, and it shall 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. The party shall serve
and file with the notice a copy of the answer, motion, or other pleading
proposed to be filed in the action.
(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.”
Finally, section
473, subdivision (d), provides, “The court … may, on notice of either party
after notice to the other party, set aside any void judgment or order.”
Discussion
In pro per Defendants Jonathan
Andrade and Jennifer Andrade file this motion to set aside the default and
default judgment entered by the Court.
As to Defendant
Jennifer Andrade, no relief is necessary.
Plaintiff dismissed her from the lawsuit, and no judgment has been entered
against her. Accordingly, the motion by
Jennifer Andrade is denied as moot.
As to
Defendant Jonathan Andrade (“Defendant”), he seeks relief under Code of Civil
Procedure section 473, subdivision (b).
Such relief is not available to him, as more than six months have passed
since the entry of the default and the default judgment. His default was entered in July 2020, and the
default judgment was entered in February 2022.
He did not file this motion until June 2024. In addition, he identifies no mistake,
inadvertence, surprise, or excusable neglect in his memorandum or supporting
declaration.
Relief is also not available to Defendant under Code of
Civil Procedure section 473.5, as more than two years have passed since the
entry of the default judgment against him.
Relief might possibly be available to Defendant under
Code of Civil Procedure section 473, subdivision (d), which allows the Court to
set aside a void judgment, on motion, at any time. Proper service is necessary to obtain a
judgment, and a judgment entered without valid service on a defendant is void.
According to the proof of service filed with the Court,
Defendant was served through substitute service at 10902 Cartwright Drive, Chatsworth,
California 91311. According to the
declaration signed under penalty of perjury by a registered California process
server, the summons and complaint was delivered to a “Jane Doe,” a Hispanic
female approximately 50 years old, at that address on August 29, 2019, and then
mailed to Defendant at that address on August 30, 2019. Moreover, the request for entry of default
was also mailed to Defendant at that same address on July 29, 2020, as was the
proposed default judgment (on April 22, 2021, and January 4, 2022).
Defendant contends, in general terms, that he was never
served. (Andrade Decl., ¶¶ 18, 21.) And he complains at some length about the
conduct in 2024 of a process server apparently hired by the assignee of the
judgment. (Id., ¶¶ 19-20.) But what did or did not happen in 2024 is not
relevant to this motion, and Defendant does not say (for example) that he did
not reside at the address on Cartwright Drive at which he was, according to the
documents on file with the Court, repeatedly served during the 2019-22 period.
On this record, the evidence does not support a finding
that Defendant was not served or that the judgment is, for some other reason, void.
Conclusion
The Court DENIES AS MOOT the motion of Jennifer
Andrade to set aside the entry of default and default judgment.
The Court DENIES the motion of Jonathan
Andrade to set aside the entry of default and default
judgment.
Moving Party is to give notice.