Judge: William A. Crowfoot, Case: BC562451, Date: 2022-12-05 Tentative Ruling

Case Number: BC562451    Hearing Date: December 5, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.         BACKGROUND

Roobina Sarkisian and Briske Terezian (collectively, “Plaintiffs”) filed this action on November 5, 2014 against San Gabriel Transit, Inc. (“SGT”) and Juan Jose Garcia (“Garcia”) (collectively, “Defendants”).  At the time of the incident that gave rise to the complaint, SGT employed Garcia as a driver.

Default was entered against Defendants on November 22, 2019, and the court entered judgment against Defendants on December 13, 2019.  Plaintiffs filed a notice of entry of judgment on December 21, 2021.  It does not appear that it has been served on anyone. 

On November 4, 2022, Defendants filed this motion to set aside the default judgment.  The motion is unopposed. 

II.       LEGAL STANDARD

Code of Civil Procedure § 473, subd. (d) provides: 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.  (Cal. Civ. Proc. Code § 473.)  A judgment may be void due to improper service of summons (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444) or entry of default without proper service of a statement of damages (Lopez v. Fancelli (1990) 221 Cal.App.3d 1305, 1310–1311).

“‘[T]he provisions of section 473 . . . are to be liberally construed and sound policy favors the determination of actions on their merits.’”  (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 256.)  “‘[B]ecause the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.’”  (Maynard v. Brandon (2005) 36 Cal.4th 364, 371-372.)

“Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted.”  (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.)  “In such situations, ‘very slight evidence will be required to justify a court in setting aside the default.’”  (Ibid.; see also Shamblin v. Brattain (1988) 44 Cal.3d 474, 478 (“when a party in default moves promptly to seek relief, very slight evidence is required to justify a trial court’s order setting aside a default”).)

III.      DISCUSSION

On May 5, 2016, the Court dismissed the action for failure to prosecute.  After the case was dismissed, Plaintiffs served Defendants with the summons, complaint, and statement of damages.  Plaintiffs filed proofs of service of summons on July 20, 2016, which reflect that Plaintiffs personally served Garcia and SGT’s designated agent for service of process, Steven M. Neimand (“Neimand”) on June 20 and June 21, 2016, respectively.  Because the case was dismissed, SGT did not answer the Complaint.  Then, on August 15, 2017, the Court granted Plaintiffs’ motion to set aside dismissal.  However, after the case was reinstated, Plaintiffs made no further attempts to serve Defendants with the summons and complaint.  

Plaintiffs did not oppose this motion and it is undisputed that Defendants were only served with the summons, complaint, and statement of damages after the case had already been dismissed.  Therefore, any purported service of summons was not effective, default should not have been entered, and the default judgment is void. 

Additionally, in November 2016, Neiman relocated his office.  As a result, Defendants did not receive notice of Plaintiffs’ motion to set aside the dismissal, nor did Defendants receive notice of the Court’s August 15, 2017 ruling granting the motion to set aside the dismissal.  Therefore, Defendants could not have answered the Complaint even after the case was reinstated because they did not have notice that the dismissal had been set aside.

In light of the foregoing, the Court finds that the judgment is void for improper service of summons. 

IV.      CONCLUSION

Accordingly, Defendants’ motion to set aside default and default judgment is GRANTED. 

The Court sets an OSC re: Dismissal for Failure to File Proof of Service for January 8, 2023 at 8:30 a.m. in Department 27.  

Moving party to give notice. 

            Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s 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.