Judge Teresa A. Beaudet, Case 19STCV46503 2022-09-01 Tentative Ruling

Plaintiff Curtis R. Olson (“Plaintiff”) filed this action on December 23, 2019 against multiple parties, including Defendant Milder Arroliga, as trustee of the ATW Trust (“Arroliga”) and The Ancient Temple of Wings (“ATW”). Plaintiff filed the operative Second Amended Complaint (“SAC”) on November 17, 2020.

On January 5, 2022, Arroliga filed a previous motion to set aside entry of default and to quash service of summons. In addition, on January 6, 2022, ATW filed a previous motion to set aside entry of default, quash service of the summons, dismiss on the grounds of an inconvenient forum, or in the alternative for a stay of entire action. On March 4, 2022, the Court issued an Order on these motions, which provides, inter alia, that “Arroliga’s and ATW’s motions to set aside default are denied without prejudice. The remainder of Arroliga’s and ATW’s motions are denied.”

Arroliga now moves again to set aside entry of default and to quash Plaintiff’s service of the summons and Complaint on Arroliga. ATW also moves to set aside entry of default. Plaintiff opposes.

Code of Civil Procedure section 418.10 provides in part: “A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion … (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.” (Code Civ. Proc., § 418.10, subd. (a)(1).)

As discussed by Plaintiff, Arroliga’s instant motion to quash service of summons was filed over two years late. On January 28, 2020, Plaintiff filed a Proof of Service showing that Arroliga was served with the summons and original Complaint by substituted service on January 15, 2020 at 8006 Wentworth St., Sunland, CA 91040 (the “Wentworth Address”). (See also Kennedy Decl., ¶ 5, Ex. B.)[1] However, Arroliga’s instant motion was filed on April 13, 2022.

Arroliga again asserts that he was not personally served, and that the purported service of the summons and complaint was thus not valid and should be quashed. (Arroliga Decl., ¶ 2.) But pursuant to Code of Civil Procedure section 415.20, subdivision (b), after reasonable attempts at personal service, a summons may be served “by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household . . . .” (Code Civ. Proc., § 415.20, subd. (b).) Arroliga also asserts again that he was not residing at the Wentworth Address at or near the purported date of substituted service, and that he previously lived at this address but vacated it in or about October 2019. (Arroliga Decl., ¶¶ 4, 5.) Arroliga also contends that after October 2019, the Wentworth Address was not his usual place of business or usual mailing address. (Arroliga Decl.,¶ 7.) In any event, as set forth above, the instant motion to quash is untimely by over two years. Moreover, the Court notes that it already denied Arroliga’s previous January 5, 2022 motion to quash service of the summons and Complaint. Arroliga’s instant motion to quash service of summons is not styled as a motion for reconsideration.

Arroliga also moves to set aside entry of default pursuant to Code of Civil Procedure sections 473 and 473.5.

Code of Civil Procedure section 473, subdivision (b) provides in pertinent part:

“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.”

Arroliga asserts that he was never personally served with the summons and Complaint, and that he was not aware of any attempted service upon him by Plaintiff in this case until late October 2021. (Arroliga Decl., ¶¶ 2, 9.) Arroliga contends that when he “learned that [he] had been named in this lawsuit and that the summons and complaint were purportedly served on [him], [he] was taken by surprise, and immediately asked for legal assistance to fight for [his] rights.” (Arroliga Decl., ¶ 9.) However, the Court notes that Arroliga’s instant motion still does not include a copy of the answer or other pleading proposed to be filed by Arroliga.[2] As set forth above, Code of Civil Procedure section 473, subdivision (b) provides in part that an application for relief under this provision “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.” (Emphasis added.)

Arroliga also moves to set aside the default pursuant to Code of Civil Procedure section 473.5. As an initial matter, subdivision (b) of Code of Civil Procedure section 473.5 provides that “[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.” (Emphasis added.) As set forth above, Arroliga did not file a copy of the answer, motion, or other pleading proposed to be filed.

ATW also moves to set aside entry of default pursuant to Code of Civil Procedure sections 473 and 473.5.

On January 14, 2020, Plaintiff filed a Proof of Service showing that ATW was served with the summons and original Complaint by substituted service on January 2, 2020 at 9461 Charleville Blvd., #259 Beverly Hills, CA 90212 (the “Charleville Address”). (See also Kennedy Decl., ¶ 5, Ex. A.)

ATW provides the Declaration of Kae-Kae-Shipp Benai-Say in support of its motion, who asserts that he is the overseer of ATW. (Benai-Say Decl., ¶ 1.) Mr. Benai-Say asserts that he was never personally served with the summons and Complaint for this lawsuit and that he “never resided at the mailbox service” located at the Charleville Address. (Benai-Say Decl., ¶¶ 3, 5.) Mr. Benai-Say also asserts that “[s]ervice of a summons by substituted service (dated 1/2/2020) never resulted in actual notice of this lawsuit to [him] or Ancient Temple of Wings.” (Benai-Say Decl., ¶ 4.) However, Mr. Benai-Say’s declaration does not indicate how he ultimately received notice of the instant action, or whether default was taken against ATW through his mistake, inadvertence, surprise, or excusable neglect.

In addition, ATW’s motion also does not include a copy of the answer or other pleading proposed to be filed, as required by Code of Civil Procedure section 473, subdivision (b) and Code of Civil Procedure section 473.5, subdivision (b).[3]

Based on the foregoing, Arroliga’s motion to quash service of summons is denied. Arroliga’s motion to set aside entry of default is denied without prejudice. ATW’s motion to set aside entry of default is denied without prejudice.

[1]This was also noted in the Court’s March 4, 2022 Order, in which the Court found that Arroliga’s January 5, 2022 motion to quash service of summons was filed almost two years late.

[2]As discussed in the Court’s March 4, 2022 Order, Arroliga’s prior January 5, 2022 motion to set aside entry of default also did not include a copy of the answer or other pleading proposed to be filed.

[3]As set forth in the Court’s March 4, 2022 Order, ATW’s prior January 6, 2022 motion to set aside entry of default also did not include a copy of the answer or other pleading proposed to be filed.

curtis r. olson, et al., Plaintiff, vs. vidala aaronoff, et al., Defendants.	Case No.:	19STCV46503
	Hearing Date:	September 1, 2022
	Hearing Time:	10:00 a.m.
	[TENTATIVE] ORDER RE: MILDER ARROLIGA’S MOTION TO SET ASIDE ENTRY OF DEFAULT; MILDER ARROLIGA’S MOTION TO QUASH SERVICE OF SUMMONS; ANCIENT TEMPLE OF WINGS’ MOTION TO SET ASIDE ENTRY OF DEFAULT

Superior Court of California

County of Los Angeles

Department 50