Judge William A. Crowfoot, Case Number: 23AHCV00875, Date: 2023-10-16 Tentative Ruling

Judge: William A. Crowfoot, Case: 23AHCV00875, Date: 2023-10-16 Tentative Ruling

On April 18, 2023, plaintiff Cynthia Perello (“Plaintiff”) filed this action asserting causes of action for general negligence and premises liability. On the complaint, Plaintiff named CAPREF Paseo, LLC (“CAPREF”), Federal Building Services, and Cypress Equities.

On May 4, 2023, Plaintiff filed a proof of service of summons which stated that CAPREF was served by personal service on its registered agent for service of process, CSC – Lawyers Incorporating Service.

On May 11, 2023, Plaintiff filed a proof of service of summons stating that “Cypress Equities” was served by personal service on its registered agent for service of process, CT Corporation System, Inc. on May 5, 2023.

On May 26, 2023, CAPREF filed a cross-complaint for express indemnity, breach of written contract, equitable indemnity, comparative partial indemnity, and declaratory relief against Federal Building Services and Cypress Equities Managed Service, L.P. (“Defendant”).

According to the proof of service filed on June 20, 2023, CAPREF served Defendant with the cross-complaint on June 14, 2023.

On July 17, 2023, Plaintiff filed a request for entry of default against “Cypress Equities.”

On September 7, 2023, Defendant filed a motion to set aside the entry of default. The motion was scheduled to be heard on September 11, 2023, but taken off calendar due to insufficient notice.

On September 12, 2023, Defendant filed this motion to set aside the entry of default pursuant to Code of Civil Procedure (“CCP”) 473.

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. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. (Code Civ. Proc., § 473(b).)

CCP § 473.5(a) provides: “When 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.” (CCP § 473.5(a).) “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.” (CCP § 473.5(b).)

“‘[A]ctual notice’ in section 473.5 ‘means genuine knowledge of the party litigant . . . .’ [Citations.] ‘[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.]” (Ellard v. Conway¿(2001) 94 Cal.App.4th 540, 547.) “[A] party can make a motion showing a¿lack of actual notice not caused by avoidance of service or inexcusable neglect . . .” (Trackman v. Kenney¿(2010) 187 Cal.App.4th 175, 180.) “‘[I]t does not require a showing that plaintiff did anything improper . . . . [T]he defaulting defendant simply asserts that he or she did not have actual notice’.” (Id.)¿

CCP § 473(d) 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.”¿ Under § 473(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.)¿

Defendant argues that there is good cause to set aside the entry of default because of the mistake, inadvertence, or excusable neglect of both Plaintiff’s and Defendant’s counsel. Defendant argues it was never placed on actual notice of the lawsuit because Plaintiff’s complaint did not name the correct entity and named an invalid company name. (Motion, pp. 4-5.) Defense counsel declares that his office was retained on July 26, 2023, but was unaware that Plaintiff had requested entry of default around July 27, 2023. (Harris Decl., ¶ 3.)

In opposition, Plaintiff argues that Defendant has not shown any mistake, inadvertence, surprise, or excusable neglect in order to warrant relief under CCP 473(b). Plaintiff also argues that Defendant fails to show that it lacked actual notice under CCP 473.5 or that the judgment is void due to improper service pursuant to CCP 473(d).

Plaintiff argues that if the Court is inclined to grant this motion, that the Court should also impose sanctions and reimbursement of costs and fees in the amount of $2,500. The Court is not inclined to grant the motion on the insufficient record before it, as discussed below, but such a sanctions amount, in any event, would be deemed excessive.

It is undisputed that Plaintiff named the wrong entity in the Complaint and Defendant was properly named for the first time in CAPREF’s cross-complaint. However, the misnomer itself is insufficient to demonstrate a mistake, a lack of notice, or improper service.

CAPREF served Defendant with the cross-complaint (which identified Defendant by the correct name) on June 14, 2023, which should have placed Defendant on notice of the underlying Complaint. One glaring problem with Defendant’s motion is the lack of any evidence from one of Defendant’s corporate representatives explaining what transpired between May 5, 2023, when the complaint was served on Defendant’s agent for service of process, and July 26, 2023, when Defendant retained defense counsel, or even between June 14, 2023, when Defendant was served with the cross-complaint, and July 26, 2023.

Such a fuller explanation would provide the Court with evidence of any mistaken belief or lack of actual notice. The declaration submitted by defense counsel, Mr. Harris, which is the sole declaration submitted and only explanation of what transpired, is not helpful for the Court to determine whether there was any mistake, surprise, inadvertence, or excusable neglect under section 473(b) because he did not represent Defendant at the time default was entered and, therefore, could not have through inadvertence “caused” that default to be entered.

Therefore, relief, though usually liberally granted, is unavailable based on the facts presented to the Court.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.