Judge: Yolanda Orozco, Case: 21STCV06832, Date: 2022-08-25 Tentative Ruling
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Case Number: 21STCV06832 Hearing Date: August 25, 2022 Dept: 31
MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT IS DENIED
Background
On February 22, 2021, Plaintiff Fabiola Vera filed a Complaint against Lucas Auto Center, Inc; Hudson Insurance Company, and Does 1 through 75.
On April 05, 2021, Plaintiff filed a First Amended Complaint. The operative FAC alleges:
1) Violation of the Consumers Legal Remedies Act, Civil Code $ 7750, et seq.
2) Violation of the Song-Beverly Consumer Warranty Act, Civil Code $ 1790 et seq. - Breach of Express Warranty
3) Violation of the Song-Beverly Consumer Warranty Act - Failure to Promptly Repurchase;
4) Violation of the Song-Beverly Consumer Warranty Act - Failure to Provide Buy-HerePay-Here Warranty
5) Violation of the Song-Beverly Consumer Warranty Act, Civil Code $ 1790 et seq.- Breach of Implied Warranty of Merchantability
6) Violation of the Rosenthal Fair Debt Collection Practices Act, Civil Code $ 1788, et seq.
7) Violation of the Unfair Competition Law, Business & Professions Code $ 17200, et seq.
8) Fraud & Deceit;
9) Negligent Misrepresentation
10) Violation of Vehicle Code $ 11711
On April 26, 2021, Plaintiff filed Proof of Service via substitute service on Defendant Lucas Auto Center. Default was entered against Lucas Auto Center on June 22, 2021.
Hudson Insurance Company was dismissed on August 03, 2021.
On October 13, 2021, Plaintiff’s oral motion to dismiss Does 1 to 75 was granted as was Plaintiff’s request for Default Judgment. (Min. Or. 10/13/21)
On May 23, 2022, Defendant Lucas Auto Center filed a Motion to Set aside Default and Default Judgment.
On July 26, 2022, Defendant Lucas Auto Center filed an ex parte application seeking to quash and recall Plaintiff’s Writ of Execution for money issued in the amount of $32,145.05 on May 23, 2022. The action was stayed until after the hearing on the Motion to Set Aside Default. (Min. Or. 07/27/22.)
Plaintiff filed Opposition papers to the Motion to Set Aside Default and Default Judgment on August 12, 2022.
Defendant Lucas Auto Center filed a Reply on August 18, 2022.
Legal Standard
California Code of Civil Procedure section 473.5 sets out the specific instances when Entry of Default or Default Judgment can be set aside or vacated.
“a) 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.
(b) 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. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.
(c) Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.”
Discussion
Defendant Lucas Auto Center Inc. (“Lucas”) moves to set aside Entry of Default and Default Judgment on the basis that Service of Process was insufficient.
i. Motion is Untimely
The question before this Court is not whether service was proper, but whether Defendant is entitled to relief under section 473.5. Since Defendant Lucas seeks relief under Code Civ. Proc. Section 473.5(a), Lucas must meet the two requirements set forth: 1) that the notice was so insufficient that Lucas lacked “actual notice” of the action and that the motion was filed with 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.” (Code Civ. Proc., § 473.5 subdivision (a).)
Plaintiff argues Lucas’ motion is untimely because the Notice of Default was mailed to Defendant Lucas on June 22, 2021, and Lucas failed to file this Motion by the December 19, 2021, deadline. The Court notes that the proper deadline would have been December 20, 2021, nevertheless, Lucas’ motion is untimely because it was filed after 180 days deadline.
The Notice of Entry of Default was mailed to Defendant Lucas on June 22, 2021. (Mot. Ex. F.) Notice by mail of the Entry of Default was permissible under the Code of Civil Procedure section 1013(a) and 2015.5. Nothing in either section 1013(a) or 2015.5 requires that notice of the Entry of Default be served by certified mail, with a return receipt requested. Moreover, Plaintiff is not required to prove that Defendant received the notice by mail under section 1013(a), only that the notice was mailed.
Therefore, Defendant Lucas has failed to prove that the Notice of Entry of Default was insufficient to give notice of the action on Lucas. Furthermore, Defendant Lucas is wrong in asserting that the applicable deadline is the two-year statute of limitations because section 473.5 specifies that the “earlier” deadline of the two applies; meaning the 180-day deadline applies from the time when Lucas received written notice that default has been entered against it.
Hence, Defendant Lucas’ motion is untimely because the motion was not filed until May 23, 2022, past the 180-day deadline. Accordingly, Defendant’s motion is untimely and the court lacks the jurisdiction to consider the motion. (See Washko v. Stewart (1941) 44 Cal.App.2d 311, 317; Richert v. Benson Lumber Co., 139 Cal.App. 671, 674—676 [noting the time limitation does not apply where the judgment is based on fraudulent return.].)
The motion is denied.
ii. Service was Proper
Assuming that Lucas’ motion was timely, Lucas has failed to prove that Plaintiff’s alleged deficient service failed to provide Lucas with actual notice. The Court notes that the focus on section 437.5 is premised on lack of “actual notice” not whether service of process was deficient.
Under California Civil Procedure Code Section 415.20 subdivision (a):
“In lieu of personal delivery of a copy of the summons and complaint to the person to be served as specified in Section 416.10,” which specifies service upon a corporation, including the registered agent authorized to leave service, “a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office . . . with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. When service is effected by leaving a copy of the summons and complaint at a mailing address, it shall be left with a person at least 18 years of age, who shall be informed of the contents thereof. Service of a summons in this manner is deemed complete on the 10th day after the mailing.”
Although Monica Paladines was the registered agent authorized to receive service for Defendant Lucas, Plaintiff’s process server complied with section 416.10 because he served Ms. Paladines at the address listed for the agent of process for Lucas and left the papers with someone who appeared to be in charge of Ms. Paladines’ office on both March 18, 2021, and on April 26, 2021, when the Complaint and First Amended Complaint were served. (Klitzke Decl. Ex. 3, 4) Section 415.20 does not require the process server to leave the papers with someone who has “actual” authority, only “apparent” authority. Furthermore, a copy of the complaints was subsequently mailed to Ms. Paladines, which Ms. Paladines does not deny receiving.
“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, referencing American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390.) Here, the presumption is that Angie Oritz was the person in charge at the address where Defendant’s agent was located at the time Defendant Lucas was served on March 18, 2021, and on April 26, 2021. This Court is not required to accept self-serving evidence that contradicts the process server’s declaration. (See Rodriguez, supra,236 Cal.App.4th at 751.) “Statutes governing substitute service shall be ‘liberally construed to effectuate service and uphold jurisdiction if actual notice has been received by the defendant [.]” (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1201 [internal citations omitted].)
Here, the mere allegation that Plaintiff’s service of process was insufficient because Ms. Ortiz failed to give Ms. Paladines a copy of the summons and complaint, does not establish that Lucas lacked actual notice of the action as required by section 473.5. Considering that Ms. Paladines received copies in the mail, and other documents such as the Request for Entry of Default, Case Management Statement, Notice of Dismissal of Hudson Insurance, and Memorandum of Costs by mail under section 1013(a) and 2015.5, Defendant failed to prove it lacked actual notice of the action “in time to defend the action.” (Mot. Ex. F, G, H, and I)
For this additional reason, the Motion is denied.
Conclusion
Defendant Lucas Auto Center, Inc.’s Motion to Set Aside Default and Default Judgment is DENIED.
Defendant to give notice.
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