Judge: Teresa A. Beaudet, Case: 22STCV32940, Date: 2024-07-10 Tentative Ruling

Case Number: 22STCV32940    Hearing Date: July 10, 2024    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Keryn Redstone (“Plaintiff”) filed this action on October 6, 2022 against Defendants Alejandro Herrera, an individual; Alejandro Herrera, as trustee of the HCH Holdings Trust Dated August 1, 2021; Herrera Clifton Hess, PC, and Herrera Law Partners. The Complaint alleges causes of action for (1) breach of contract, (2) professional negligence,

(3) fraud, (4) negligent misrepresentation, (5) breach of fiduciary duty, (6) conversion,

(7) intentional infliction of emotional distress, and (8) “Civil Rico - 18 U.S.C. § 1962(a)-(c).”

On January 17, 2023, defaults were entered in this matter against Alejandro Herrera, an individual, Herrera Clifton Hess, PC, and Herrera Law Partners. On February 28, 2023, a default was entered against Alejandro Herrera, as trustee of the HCH Holdings Trust Dated August 1, 2021.

On August 1, 2023, the Court issued an Order that the default entered against Herrera Clifton Hess, PC on January 17, 2023 is set aside. 

Alejandro Herrera, an individual and as trustee of the HCH Holdings Trust Dated August 1, 2021 and Herrera Law Partners (collectively, “Defendants”) now move for an order setting aside the defaults entered against them in this matter. Plaintiff opposes. 

Discussion

Defendants first cite to Code of Civil Procedure section 473, subdivision (d) in support of the motion. This provision provides that “[t]he court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” ((Id., § 473, subd. (d).)

As an initial matter, Defendants assert that “the Court should set aside entry of defaults and default judgments entered as against the HERRERA Defendants as void for failure to properly serve summons.” (Mot. at p. 12:1-2.) Defendants cite to Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444, where the Court of Appeal noted that “[a] motion to vacate a judgment on the ground that it is void is timely if made within a reasonable time, which has been determined to be any time within two years of the entry of the judgment.” (Internal citations omitted.) However, the Court did not enter default judgments against the Defendants in this matter. Rather, as set forth above, defaults were entered against Defendants. Thus, there is no “default judgment” to be set aside.

Defendants also assert that “relief from entry of default is appropriate under Code of Civil Procedure section 473.5.” (Mot. at p. 14:3-4.)

Pursuant to Code of Civil Procedure section 473.5, subdivision (a), “[w]hen 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.” Pursuant to Code of Civil Procedure section 473.5, subdivision (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.”

Pursuant to Code of Civil Procedure section 473.5, subdivision (c), “[u]pon 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.” In Ellard v. Conway (2001) 94 Cal.App.4th 540, 547, the Court of Appeal noted that “[a]ctual notice in section 473.5 means genuine knowledge of the party litigant…[A]ctual knowledge has been strictly construed, with the aim of implementing the policy of liberally granting relief so that cases may be resolved on their merits.” (Internal quotations and citations omitted.)

Defendants assert that “[t]o date, the HERRERA Defendants still have not received written notification that default has been entered and the Court docket does not show the filing of any such notice.” (Mot. at p. 14:13-14.) In the opposition, Plaintiff does not appear to provide any evidence that Defendants were served with written notice that the subject defaults had been entered.  

In his declaration in support of the motion, Alejandro Herrera states that “I was never served with either the Summons or Complaint in this matter either on my own behalf, as trustee of the HCH HOLDINGS TRUST DATED AUGUST 1, 2021 or on behalf of HERRERA LAW PARTNERS.” (Alejandro Herrera Decl., ¶ 6.)[1] Alejandro Herrera states that “[o]n or around January 27, 2022[2], through examining the Court’s Register of Actions I became aware that Plaintiff had filed a complaint and requests for entry of default against me and several entities and non-entities. On about May 29, 2023 I pulled up the Proof of Service and learned that Plaintiff claims to have personally served me with the Complaint. Shocked, I discussed the issue with my wife and was surprised when she told me that on October 18, 2022 and again in January someone had come to the house, asked if she was ‘Alex Herrera’ and had left some papers with her. My wife’s name is Alexandra Herrera. She had forgotten to give the documents to me and was not sure where she placed them.” (Alejandro Herrera Decl., ¶ 2.)

In his declaration, Alejandro Herrera states that “[o]n about January 27, 2023, I reached out to Plaintiff’s counsel Mr. Galperin and advised him of the facts I had learned regarding the attempted service and requests for entry of default. I asked counsel to set aside the defaults and default judgments to allow me file responsive documents, though they had not been entered at that time…Counsel later got back to me and advised he would not set the defaults aside because he believed service to be valid, but that he would consider a stipulation.” (Alejandro Herrera Decl., ¶ 4.) Alejandro Herrera states that “[f]or several months after communicating with Plaintiff’s counsel, I was dealing with the deaths of close relatives and illness of my minor child and wife, and eventually myself,” and that “around May 2023 I reported the matter to my insurance carrier and requested an attorney be retained to represent me in this matter.”  (Alejandro Herrera Decl., ¶ 5.) Alejandro Herrera also states that “I was not attempting to evade service of the Summons or Complaint in this matter at any time.” (Alejandro Herrera Decl., ¶ 7.)

Defendants assert that accordingly, they did not receive actual notice of the action in time to defend. Defendants assert that “[t]he HERRERA Defendants were not avoiding service at any time…Nor is there any inexcusable neglect on the part of the HERRERA Defendants that caused the default. Since all requirements for relief under Code of Civil Procedure section 473.5 are satisfied, the Court should set aside entry of default and grant The HERRERA Defendants leave to defend the action.” (Mot. at p. 15:16-20.) Defendants provide a copy of their proposed answer to the Complaint with the motion. (Kajo Decl., ¶ 5, Ex. 4.)  

Plaintiff does not appear to assert that Defendants’ request for relief under Code of Civil Procedure section 473.5 should be rejected as untimely. As set forth above, Code of Civil Procedure section 473.5, subdivision (a) provides in part that “[t]he 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.” Here, Plaintiff does not appear to dispute that Defendants were not provided with written notice that the subject defaults had been entered against them. In addition, no default judgments have been entered against Defendants. The Court finds that Defendants have shown that their notice of motion was served and filed within a “reasonable time.” The Court also finds that Defendants have shown that their “lack of actual notice in time to defend the action was not caused by [their] avoidance of service or inexcusable neglect…” (Code Civ. Proc., § 473.5, subd. (c).)

 Based on the foregoing, the Court finds that Defendants have demonstrated grounds for the requested relief under Code of Civil Procedure section 473.5.[3]

Conclusion

Based on the foregoing, Defendants’ motion to set aside the defaults entered against them is granted.

The January 17, 2023 defaults entered against Alejandro Herrera, an individual and Herrera Law Partners are ordered set aside. The February 28, 2023 default entered against Alejandro Herrera, as trustee of the HCH Holdings Trust Dated August 1, 2021 is ordered set aside.  

The Status Conference Review of default judgment is vacated.

Defendants are ordered to file and serve their proposed answer to the Complaint within 10 days of the date of this Order.¿¿ 

Defendants are ordered to give notice of this Order.

DATED:  July 10, 2024         

                        ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court