Judge: Thomas D. Long, Case: 23STCV21532, Date: 2024-05-21 Tentative Ruling

Case Number: 23STCV21532    Hearing Date: May 21, 2024    Dept: 48

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On September 7, 2023, Plaintiffs Min Woo Joo and Prime Educational Academy Inc. filed this action against Defendants Marvin Johnson, Lori Gay, Jesse Ibarra, Angela Heyward, and others.  On November 13, 2023, the Court entered default against the individual Defendants.

On April 12, 2024, Defendants filed motions to set aside the defaults.  Defendants each included a copy of their proposed answer to the complaint.

LEGAL STANDARD

The Court may relieve a party or counsel from a judgment resulting from mistake, inadvertence, surprise, or excusable neglect.  (Code Civ. Proc., § 473, subd. (b).)  The application for relief must be made within a reasonable time, not to exceed six months, after the judgment.  (Ibid.)  Additionally, the Court may set aside a default or default judgment upon a motion and affidavit attesting that the lack of actual notice in time to defend the action was not caused by the party’s avoidance of service or inexcusable neglect.  (Code Civ. Proc., § 473.5.)

“[I]f a defendant is not validly served with a summons and complaint, the court lacks personal jurisdiction and a default judgment in such action is subject to being set aside as void.”  (Lee v. An (2008) 168 Cal.App.4th 558, 564.)

DISCUSSION

According to the proofs of service, Marvin Johnson was personally served on September 21, 2023 at 12:46 p.m. at Neighborhood Housing Services of Los Angeles County (“NHS”).  At the same time, Lori Gay, Jesse Ibarra, and Angela Heyward were served via substituted service through Marvin Johnson.

A.        Lori Gay, Jesse Ibarra, and Angela Heyward Were Not Properly Served.

Substituted service requires leaving a copy of the summons and complaint either at the individual’s dwelling house or usual place of abode, usual place of business, or usual mailing address other than a post office box.  (Code Civ. Proc., § 415.20, subd. (b).)  Plaintiff must also mail a copy of the summons and complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left.  (Ibid.)

Lori Gay, Jesse Ibarra, and Angela Heyward were never personally served and never received a copy of the summons and complaint left at or mailed to NHS.  (Gay Decl. ¶¶ 2-4; Ibarra Decl. ¶¶ 2-4; Heyward Decl. ¶¶ 2-4)  Accordingly, the Court concludes that these Defendants were not properly served via substituted service.

The motions are granted for Lori Gay, Jesse Ibarra, and Angela Heyward.

B.        Marvin Johnson Is Entitled to Relief Due to Mistake, Inadvertence, or Excusable Neglect.

When the process server arrived at NHS, he handed a packet of papers to Marvin Johnson.  (Johnson Decl. ¶ 2.)  The process server asked Johnson to sign something, “which appeared to be a log of some kind.”  (Johnson Decl. ¶ 2.)  Johnson signed it once and “understood that [he] was accepting service of papers for one party.”  (Johnson Decl. ¶ 2.)  The process server “did not describe what he was serving at all, except that they were legal papers.”  (Johnson Decl. ¶ 3.)

The papers “appeared to be multiple copies of various documents,” and Johnson did not notice that that there were multiple copies of a summons with different names handwritten at the bottom.  (Johnson Decl. ¶ 3.)  Because he thought the papers were “just a bunch of duplicate copies,” he scanned one copy of each document (including the summons for NHS)  and sent the scanned documents to supervisor Lori Gay.  (Johnson Decl. ¶¶ 4-5.)

On April 3, 2024, Johnson retrieved the physical copies of the documents for the first time since September 21, 2023.  (Johnson Decl. ¶ 10.)  “[N]ow that [he] knew what [he] was looking for,” he discovered that there were separate copies of the summons for each individual Defendant.  (Johnson Decl. ¶ 10.)  Prior to April 4, 2024, counsel for NHS was not aware of any summons and complaint being served on the individual Defendants.  (Spitser Decl. ¶¶ 2-3.)

Based on all of these facts—and in the absence of any opposition—the Court finds that the default is the result of mistake, inadvertence, or excusable neglect, and Johnson is entitled to relief under Code of Civil Procedure sections 473 and 473.5.

The motion is granted for Marvin Johnson.

CONCLUSION

The unopposed motions to set aside the defaults are GRANTED.  The defaults entered on November 13, 2023 are VACATED.

Defendants are ordered to file and serve their answers within 10 days.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit.  If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

         Dated this 21st day of May 2024