Judge: Upinder S. Kalra, Case: 22STCV35523, Date: 2023-03-15 Tentative Ruling

Case Number: 22STCV35523    Hearing Date: March 15, 2023    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   March 15, 2023                                  

CASE NAME:           Carlos Balbona v. Jamie Biver

CASE NO.:                22STCV35523

MOTION TO SET ASIDE/VACATE DEFAULT JUDGMENT

MOVING PARTY: Defendant Jamie Biver

RESPONDING PARTY(S): Plaintiff Carlos Balbona

REQUESTED RELIEF:

1.      An order setting aside/vacating the default judgment

TENTATIVE RULING:

1.      Motion to Set Aside/Vacate Default Judgment is GRANTED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On November 9, 2022, Plaintiff Carlos Balbona (“Plaintiff”) filed a complaint against Defendant Jamie Biver (“Defendant.”) The complaint alleged five causes of action: (1) Quiet Title, (2) Trespass, (3) Nuisance, (4) Declaratory Relief, and (5) Nuisance in Violation of Civil Code § 841.4. The complaint alleges that Plaintiff owns a parcel of land on Calvert Street in North Hollywood, California, which has a common boundary with the parcel of land owned by Jamie Biver. Plaintiff asserts that Defendant has encroached into the boundaries of Plaintiff’s property.

On January 23, 2023, Defendant filed the current Motion to Set Aside/Vacate Default. Plaintiff’s Opposition was filed on February 15, 2023. Defendant’s Reply was filed on March 8, 2023.

LEGAL STANDARD:

“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…  [The application] shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”  CCP § 473(b). 

Although a trial court has discretion to vacate the entry of a default or subsequent judgment, this discretion may be exercised only after the party seeking relief has shown that there is a proper ground for relief, and that the party has raised that ground in a procedurally proper manner, within any applicable time limits.” Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495. “The defendant must … demonstrate a satisfactory excuse for not responding to the original action in a timely manner.” Id. at 504. Moving parties have the initial burden to prove excusable neglect by a preponderance of competent evidence. Kendall v. Barker (1988) 197 Cal.App.3d 619, 624.   

CCP § 473(d) provides in relevant part that “[t]he court may, upon motion of the injured party…set aside any void judgment or order.” CCP § 473(d) 

CCP section 473.5 permits the Court to set aside a default and default judgment when the service of a summons has not resulted in actual notice to a party in time to defend the action. ¿CCP section 473.5 requires the motion to 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 the party's avoidance of service or inexcusable neglect. ¿The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of the following: 

1) two years after entry of a default judgment against him or her; or  

2) 180 days after service on him or her of a written notice that the default or default judgment has been entered. ¿ 

ANALYSIS:

             The Defendant moves to set aside the default on the grounds that service was improper. Specifically, the Defendant argues that he was never served with the summons and complaint, and there was no substituted service.

            Defendant argues that the default taken was void as under CCP § 473(d) because he was not properly served with the Summons and Complaint. CCP § 473(d) states: The 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.

Defendant argues that he was not served by either personal or substituted service. On the Proof of Service filed by Plaintiff, the documents indicate that the papers were left with a John Doe, who was between 5’7” and 6’0” tall, weighing 140-160 pounds. The process server attempted two separate times, but no one answered, and the copies were mailed. However, Defendant argues that there was no one matching that description at the residence, including Defendant. Defendant, who is 6 feet tall and weighs more than 270, and therefore argues that he could not have been the John Doe described in the Proof of Service. Moreover, neither Defendant nor Ms. Hicks, Defendant’s wife, recall having anyone come to the residence on the days stated in the Proof of Service as both generally work from home. Lastly, Defendant did not receive the summons or complaint in the mail, and was only made aware of the matter when they received the entry of default in the mail.

Plaintiff argues that Defendant’s arguments about lack of service fail because the only discrepancy is the weight of the Defendant. The description of the John Doe matches Defendant, and thus, the discrepancy in weight is not a cause of vacating default. Additionally, the Proof of Service, which indicates that an agent of DDS Legal Support mailed the copy. The claim that Defendant did not receive it is of no consequence since the process served indicated service by mail was completed. 

“The filing of a proof of service creates a rebuttable presumption that the service was proper. However, the presumption arises only if the proof of service complies with the applicable statutory requirements.” (Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.) “Evidence Code section 647 provides that a registered process server's declaration of service establishes a presumption that the facts stated in the declaration are true.” (Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750.) Here, Defendant asserts that no one matching that description was at the house when the service was completed. The Proof of Service indicates that service was completed via substituted person.

However, Plaintiff in opposition argues that the person who received the copies “fully matches Defendant’s description.” While there is a rebuttable presumption of proper service because the proof of service was filed, the evidence demonstrates that Defendant was not served according to CCP § 415.20(b) as no one in his household was given the document. The discrepancy between the description in the proof of service and the photos provided by Defendant is significant, as it is an over 110-pound difference. Additionally, there was no significant delay in requesting to set aside the default, with the request for entry of default filed on January 10^th.  Defendants declare that they first learned of this lawsuit when they received the request for entry of default the week of January 10. Within days, they filed the current motion on January 13, a mere 13 days after entry of default. The speed at which Defendants moved is strong circumstantial evidence that if they were aware of this complaint, they would have filed a timely answer. Moreover, courts have construed CCP § 473 liberally because there is a strong public policy so that cases  “might be tried upon their merits in one trial where no prejudice to the opposing…is demonstrated.” (Tung v. Chicago Title Company (2021) 63 Cal.App.5th 734, 747, review denied (July 28, 2021)). Lastly, the court is aware of the disturbing trend to race to the courthouse steps to obtain default. Without commenting on present counsel’s conduct, the net effect of sanctioning the speed upon which default was entered here would be condoning that practice. (SEE Lasalle v. Vogel (2019) 36 Cal. App. 5th 127.) This matter is a quiet title action on neighbors. The Court finds it hard to believe that Plaintiff did not expect Defendants to fight the matter on the merits. Equally hard to believe is that no warning letter was sent to Defendants before Default was taken. Therefore, the Court finds that considering the liberal viewing of CCP § 473, the Court concludes that the Motion should be Granted.

Thus, the Motion to Set Aside/Vacate Default is GRANTED.

Conclusion:

            For the foregoing reasons, the Court decides the pending motion as follows:

            Motion to Set Aside/Vacate Default is GRANTED. Defendant is to file a responsive pleading within 10 days of service of this order.

Clerk  to give notice.

IT IS SO ORDERED.

Dated:             March 15, 2023                       __________________________________                                                                                                                Upinder S. Kalra

                                                                                    Judge of the Superior Court