Judge: William A. Crowfoot, Case: 24AHCV00078, Date: 2024-08-21 Tentative Ruling

Case Number: 24AHCV00078    Hearing Date: August 21, 2024    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT

I.            INTRODUCTION

Plaintiff Zheng Wang (“Plaintiff”) filed this action against defendants Yu Sun, Lianchun Li, and LS Toy Global, Inc. on January 16, 2024. On March 20, 2024, Plaintiff filed a proof of service of summons reflecting that the summons and complaint had been served on Yu Sun (“Defendant”) by substituted service on March 18, 2024, at 4:37 p.m. by leaving the documents at Defendant’s home located at 12882 Shorthorn Drive, Eastvale, California (the “Shorthorn Property”), with Charlie Wong, a co-occupant.

On May 1, 2024, Plaintiff filed a request for entry of default.

On July 25, 2024, Defendant filed this motion to set aside the default based on Code of Civil Procedure section 473(b).

II.          LEGAL STANDARD

The court has broad discretion to vacate the entry of default, default judgment, or a dismissal where the moving party timely establishes a proper ground for relief.  (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.)  Code of Civil Procedure section 473(b) contains a discretionary provision for relief from “a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473, subd. (b).) “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.” (Ibid.)

III.        DISCUSSION

Defendant declares that on the date of service, March 18, 2024, she was not living at the Shorthorn Property. (Sun Decl., ¶ 3.) She states that the Shorthorn Property served as the address for co-defendant LS Toy Global, Inc., which was dissolved on December 8, 2023. (Sun Decl., ¶ 4.) The Shorthorn Property is also her rental property and rented by Charlie Wong. (Sun Decl., ¶¶ 4-5.)

Defendant declares that on or about June 5, 2024, she arrived at the Shorthorn Property and her tenant handed her mail which contained the summons and complaint. (Sun Decl., ¶ 6.) She states that she “was shocked because [she] [has] not received mail from this address since 2023.” (Sun Decl., ¶ 6.) Defendant further declares that she had no notice that she had been sued until June 5, 2024, and that she retained counsel on the same day. (Sun Decl., ¶¶ 7-8.)

In opposition, Plaintiff argues that Defendant fails to show how the default was obtained due to excusable neglect. Plaintiff claims that Defendant’s failure to pick up mail or documents from the Shorthorn Property was unreasonable, and that it was not credible that Defendant’s tenant, would not inform Defendant of the legal papers for several months. Plaintiff contends that Defendant could have avoided the entry of default if she exercised ordinary care in picking up her mail or communicating with her tenant.

The Court notes that, as a technical matter, Plaintiff’s proof of service was defective because Defendant could not be served by substituted service at the Shorthorn Property if the Shorthorn Property was not Defendant’s “dwelling house” or “usual place of abode.”  

In the alternative, Plaintiff argues that if the Court grants the motion and sets aside the default, Defendant should be ordered to pay Plaintiff a penalty of $1,000 pursuant to Code of Civil Procedure section 473(c)(1)(A).

As the purpose of section 473(b) is to promote the determination of actions on their merits, the Court finds that Defendant has met their burden to show that the default was taken due to excusable neglect. (Even Zohar Const. & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 838-839.) Defendant was not residing at the Shorthorn Property and declares under penalty of perjury that she had not received mail there since 2023. (Sun Decl., ¶¶ 3, 6.) Also, her tenant, Charlie Wong, was under no obligation to inform her of her mail.

IV.        CONCLUSION

Accordingly, Defendant’s motion to set aside the default is GRANTED. Defendant is ordered to file the proposed answer and cross-complaint within 5 days of the date of this Order. Plaintiff’s request for $1,000 penalty is DENIED.

Moving party to give notice.

Dated this 21st day of August 2024

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.