Judge: Theresa M. Traber, Case: 24STCV24294, Date: 2025-04-16 Tentative Ruling

Case Number: 24STCV24294    Hearing Date: April 16, 2025    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     April 16, 2025                        TRIAL DATE: NOT SET

CASE:                         Xavier Nailing, et al. v. Wells Fargo, Inc.

CASE NO.:                 24STCV24294           

MOTION TO SET ASIDE DEFAULT

MOVING PARTY:               Defendant Wells Fargo, Inc.

RESPONDING PARTY(S): Plaintiffs Xavier Nailing and Philip Addington, in pro per.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for negligence that was filed on September 19, 2024. Plaintiffs allege that Defendant refused to reimburse Plaintiffs for money removed from their bank accounts by fraudulent transactions.

Defendant moves to set aside the default taken against it.

TENTATIVE RULING:

            Defendant’s Motion to Set Aside is GRANTED.

DISCUSSION:

Defendant moves to set aside the default taken against it.

Procedural Posture

Although Defendant states that this motion is brought under Code of Civil Procedure section 473 subdivision (b) for failing to answer due to mistake, inadvertence, or excusable neglect and section 473.5 for lack of actual notice in time to defend the action (Motion p.3), Defendant’s primary argument is that service of process was not properly made. This argument is more properly made under Code of Civil Procedure section 473 subdivision (d), which permits the Court to set aside a void order on a party’s motion. As Plaintiffs have not objected to the motion as providing inadequate notice in this respect, the Court will address Defendant’s service arguments under section 473 subdivision (d).

Improper Service of Process

Defendant argues that Plaintiffs failed to effect proper service of the summons and complaint, thereby voiding the default.

The court may, on motion of either party after notice to the other party, set aside any void judgment or order. (Code Civ. Proc. § 473(d).) There is no time limit for a motion to set aside a void judgment for improper service. (California Capital Ins. Co. v. Hoehn (2025) 17 Cal. 5th 207, 225-26 [abrogating previous doctrine imposing a two-year deadline to bring a motion under section 473(d) for improper service].)

The primary method of service of process is personal service, which must be attempted before any other method. (See Code Civ. Proc. §§ 415.10, 415.20(a).) To properly serve a corporation, a plaintiff may serve (a) the corporation’s designated agent for service of process; (b) the president, chief executive officer, or other head of corporation, a vice president, secretary or assistant secretary, treasurer or assistant treasurer, controller or chief financial officer, or a general manager; or (c) if the corporation is a bank, a cashier or assistant cashier. (Code Civ. Proc. § 416.10.)

Plaintiffs’ proof of service, filed November 14, 2024, indicates that Wells Fargo, Inc. was served on November 7, 2024 by personally serving “Roy Quintero, Authorized Agent to Accept Service on Behalf of Wells Fargo, Inc.” at 333 Grand Ave., 1^st Floor, Los Angeles, CA. (Proof of Service filed November 14, 2024.) Defendant has provided a declaration from Mr. Quintero in which he states, under penalty of perjury, that he is a personal banker, not a cashier or assistant cashier, nor is he an authorized agent to accept service of process. (Declaration of Roy Quintero ISO Mot. ¶ 2.) Defendant thus argues that service was improper because it was not made on the proper agent. As Plaintiffs’ opposition fails to meaningfully respond to this argument beyond a bare assertion that service was proper, the Court is forced to concur with Defendant that service was not properly effected.

Because Plaintiffs failed to properly serve Defendant with the summons and complaint, the Court concludes that the default entered February 7, 2025 is void and must be set aside.

CONCLUSION:

            Accordingly, Defendant’s Motion to Set Aside is GRANTED.

            Moving party to give notice.

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IT IS SO ORDERED.

Dated:  April 16, 2025                                    ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.