Judge: Virginia Keeny, Case: 20STCV47910, Date: 2025-03-18 Tentative Ruling

Case Number: 20STCV47910    Hearing Date: March 18, 2025    Dept: 45

CAROLYN W. DEAL, et al. v. KIYATONNIA BROUSSARD, et al.

MOTION TO SET ASIDE ENTRY OF DEFAULT AND DEFAULT JUDGMENT

Date of Hearing:  3/18/25                                           Trial Date:   None

Department:        45                                                    Case No.:    20STCV47910

Moving Party:             Defendant Richard Stanley McHenry Jr.

Responding Parties:    Plaintiffs Carolyn W. Deal and Karen J. Deal

BACKGROUND

This is a quiet title action. The plaintiffs accuse the defendants of executing fraudulent grant deeds falsely claiming ownership of the plaintiffs’ property.

On December 15, 2020, Plaintiffs Carolyn W. Deal and Karen J. Deal (collectively, “Plaintiffs”) filed the operative First Amended Complaint (“FAC”) against several defendants, including Richard Stanley McHenry Jr. sued as Richard McHenry (“McHenry”), asserting causes of action for (1) quiet title, (2) cancellation of instruments, (3) fraud and deceit, (4) slander of title, (5) elder abuse, (6) negligence, (7) intentional infliction of emotional distress, (8) negligent infliction of emotional distress, and (9) declaratory relief.

On August 17, 2021, Defendant McHenry filed a motion to quash service of Summons and the FAC, arguing defective service of process.

On October 12, 2021, Plaintiffs filed their opposition to that motion to quash.

On October 28, 2021, the Court denied the motion to quash, finding (among other things) that (1) Plaintiffs filed a proof of service on May 24, 2021, which showed that Defendant was served with the Summons and FAC on May 18, 2021, by substituted service, (2) the proof of service included a declaration of diligence and a statement that the documents were mailed to Defendant on May 19, 2021, and (3) Defendant had failed to present evidence rebutting the presumption that the Summons and FAC had been served through substituted service. (Order Re: Motion to Quash Service, filed on October 28, 2021, pp. 4-5.)

On May 31, 2023, default was entered against McHenry.

On December 11, 2023, the Court entered default judgment against McHenry and other defendants after making the following findings (amongst others). The defendants “were properly served with a copy of the summons on first amended complaint and the first amended complaint. Said Defendants failed to answer the first amended complaint or appear and defend the action within the time allowed by law. Defendants’ defaults were entered by the clerk upon plaintiffs’ applications.” (Judgment for Quiet Title and Cancellation of Instruments, p. 2:5-8 [emphasis added].)

On December 26, 2023, McHenry filed his first motion to set the default and default judgment, arguing improper service of the Summons and FAC.

On July 17, 2024, the Court denied that motion on procedural grounds after finding that McHenry had failed to provide proof of service of the moving papers, listed the incorrect time for the hearing on the notice of motion, and had placed the incorrect case number.

On December 17, 2024, McHenry filed the instant motion to set aside, again arguing that the default and default judgment are void due to improper service.

On March 13, 2025, Plaintiffs filed their opposition to the second motion to set aside.

[Tentative] Ruling

The Motion to Set Aside Entry of Default and Default Judgment is DENIED.  

DISCUSSION

Defendant McHenry, in pro per, moves to set aside the default and default judgment pursuant to Code of Civil Procedure sections 473 and 473.5.

“Under Section 473, subdivision (d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service.” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544 (“Ellard”); see Code Civ. Proc., § 473, subd. (d) [“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”].)

Under Section 473.5(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 … 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 … and for leave to defend the action.” “‘“[A]ctual notice” in section 473.5 “means genuine knowledge of the party litigant....” [Citation.]’ [Citation.] ‘“[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. [Citation.]’ [Citation.]” ( Ellard, supra, 94 Cal.App.4th at p. 547.)

Here, the Court has already previously determined that Defendant was properly served with the Summons and FAC through substituted service on May 18, 2021. (Order Re: Motion to Quash Service, filed on October 28, 2021, pp. 4-5; Judgment for Quiet Title and Cancellation of Instruments, p. 2:5-8.) To the extent Defendant McHenry is moving for reconsideration of that ruling, McHenry was required to file a motion for reconsideration within 10 days after service of that October 28, 2021 ruling, but failed to do so. (Code Civ. Proc., § 1008, subd. (a) [“When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order”].)

Therefore, the motion is denied.

CONCLUSION

The Motion to Set Aside Entry of Default and Default Judgment is DENIED.