Judge: Yolanda Orozco, Case: BC720060, Date: 2023-03-01 Tentative Ruling

Case Number: BC720060    Hearing Date: March 1, 2023    Dept: 31

MOTION TO SET ASIDE ENTRY OF DEFAULT 

TENTATIVE RULING 

Defendant Karen Proffitt’s Motion to Set Aside the Entry of Default entered on January 29, 2021, is GRANTED.   

Background 

On August 30, 2018, Plaintiff Nichola Butta filed the instant action against Defendant Billie Lee Sgroi-Proffitt (“Billie”) and Does 1 through 50. On October 30, 2020, Plaintiff filed the Second Amended Complaint (“SAC”), which added Karen Proffitt and Annette Proffitt Productions as defendants and reduced the number of Doe defendants to 20. The SAC asserts causes of action for: 

1.               Defamation; 

2.               Public Disclosure of Private Facts; 

3.               Intentional Infliction of Emotional Distress; 

4.               Conversion (against Billie); 

5.               Unjust Enrichment (against Billie); 

6.               Declaratory Relief (against Billie); 

7.               Declaratory Relief (against Billie); 

8.               Money Had and Received (against Billie); and 

9.               Mistaken Receipt (against Billie). 

On January 29, 2021, default was entered as to Karen Proffitt and Annette Proffitt Productions (hereinafter “Defendants”). 

On December 29, 2022, Defendant Karen Proffitt moved to set aside/vacate her entry of default.

Plaintiff filed opposing papers on February 15, 2023.

Defendant filed a reply on February 22, 2023. 

Legal Standard 

“Section 473(b) provides for both discretionary and mandatory relief.¿ [Citation.]”¿ (Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.)¿ An application for relief under this section must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) In addition, an application for relief under this section “shall be accompanied by a copy of the answer or other pleading proposed to be filed herein, otherwise the application shall not be granted.” (Code Civ. Proc., § 473, subd. (b).) 

Relief under this section is mandatory when based on an attorney affidavit of fault; otherwise, it is discretionary. (Id.) When relief from default and default judgment is based on an attorney affidavit of fault, the six-month period starts to run from the date of the entry of the default judgment. (Code Civ. Proc., § 473, subd. (b); Sugasawara v. Newland (1994) 27 Cal.App.4th 294, 295.)¿¿ 

Discussion 

Defendant Karen Proffitt moves for an Order to Set Aside the Default dated January 29, 2021. Defendant’s proposed answer is attached as Exhibit F.

Service of Process was Proper

“When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.’”  (Summers v. McClanahan(2006) 140 Cal.App.4th 403, 413.) A proof of service containing a declaration from a registered process server invokes a rebuttable presumption affecting the burden of producing evidence, of the facts stated in the return. (Cal. Evid. Code, § 647; see American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390.) The party seeking to defeat the service of process must present sufficient evidence to show that the service did not take place as stated.  (See Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1428.) Merely denying service took place without more is insufficient to overcome the presumption. (Id.)

On November 20, 2020, Plaintiff filed a proof of service completed by a California registered Process Server that Defendant was served via substitute service at the address 143 Feliz Drive, Oak View, CA 93022 by leaving a copy of the summons, Second Amended Complaint, and ADR package with another occupant over the age of 18. The Process Server’s Declaration of Due Diligence shows that he attempted to personally serve Defendant five (5) times before resorting to substitute service. A copy of the summons, Second Amended Complaint, and ADR package were also mailed to Defendant via First Class Mail.

Defendant does not deny that her residence is in Oak View, CA, but asserts that at the time of service she was dealing with a family medical emergency and was temporarily residing in Riverside County beginning in mid-November 2020 and continuing throughout December 2020. (K. Proffitt Decl. ¶¶ 5, 6.) The Defendant is the mother of Defendant Billie Lee-Sgroi-Proffitt and although she was aware her daughter was involved in a lawsuit with the Plaintiff, she did not have reason to believe she would be named as a Defendant in this instant action. (K-Proffitt Decl. ¶ 4.)

Defendant admits that when she returned home, she was aware of the summons but “mistakenly believed that the summons had no effect as it was not served to me – rather apparently left at my home.” (K. Proffitt Decl. ¶ 6.) Defendant admits she did not respond to the Summons because she believed Defendant Billie Lee-Sgroi-Proffitt and Plaintiff would resolve their issues and failed to appreciate the potential impact of her failure to respond on her ability to defend against this action. (K. Proffitt Decl. ¶ 6.)

The Court finds that Plaintiff was properly served via substitute service on November 20, 2020, and Default was properly entered against Defendant on January 29, 2021.

Therefore, Plaintiff is not entitled to have the entry of default set aside under Code of Civil Procedure section 473.5 because Plaintiff had actual notice of the action. Unlike the defendants in Goya, Defendant admits to receiving the documents in this lawsuit, knowledge of the alleged lawsuit, and awareness of the nature of the documents, despite her failure to appreciate the legal consequences of her failure to respond. (See Goya v. P.E.R.U. Enterprises (1978) 87 Cal.App.3d 886, 891 [relief from entry of default judgment available to defendants under Code of Civil Procedure section 473.5 where the defendants were served but had no actual notice of the lawsuit].)

Discretionary and Equitable Relief

Plaintiff may not see under Code of Civil Procedure section 473 subdivision (b) which provides for discretionary relief from a judgment, dismissal, order or other proceeding taken against the party through his or his mistake, inadvertence, surprise, or excusable neglect because more than six months have elapsed. (Code Civ. Proc. § 473 subd. (b); Jackson v. Kaiser Foundation Hospitals, Inc. (2019) 32 Cal.App.5th 166, 173–174.) (Code Civ. Proc., § 473.)

However, relief may still be granted via the Court’s equitable powers if entry of default was obtained by fraud or mistake. (See Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 737 [“Where, as in the case at bench, the motion is made more than six months after entry of default, the motion is not directed to the court's statutory power under section 473 to grant relief for mistake or excusable neglect but rather is directed to the court's inherent equity power under which it may grant relief from a default judgment where there has been extrinsic fraud or mistake.”].) “In this context the terms ‘fraud’ and ‘mistake’ have been given a broad meaning by the courts, and tend to encompass almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing. (Citation.) The term ‘extrinsic’ refers to matters outside of the issues framed by the pleadings, or the issues adjudicated. (Citation).” (Id. at 165.)

Plaintiff fails to provide evidence that the notice of default was served on Defendant in a manner sufficient to put her on notice that default had been taken against her. Defendant also asserts that she was never served with dscovery requests and that she sought an attorney to represent her upon learning that the bankruptcy proceeding did not stay the action as to her. (K. Proffit Decl. ¶ 12) Defendant then promptly moved to set aside the entry of default. (Id.)

Failure to Serve a Statement of Damages is Evidence of Extrinsic Mistake

Plaintiff cannot seek default judgment against Defendant unless a statement of damages has been also served. Plaintiff’s first, second, and third causes of action for Defamation, Public Disclosure of Private Facts, and Intentional Infliction of Emotional Distress are causes of action that require a statement of damages to be served under Code of Civil Procedure section 425.11. (See Hamm v. Elkin¿(1987) 196 Cal.App.3d 1343, 1345-1346 [finding that a statement of damages must be served ‘before a default may be taken’ in a personal injury case.].)

In Shwab v. Rondel Homes, Inc. (1991) the plaintiff brought a civil rights action under Civil Code sections 54.1 and 54.3 and failed to serve the defendants with a statement of damages. (53 Cal.3d 428, 429.) The California Supreme Court interpreted that the word “notice” and “special and general damages” “implies that the Legislature intended that a defendant be given actual notice of the special and general damages claimed by the plaintiff.” (Id. at 428.) Therefore, because the plaintiffs in Shwab prayed for damages for mental and emotional distress, “Plaintiff’s action was subject to § 425.11.” (Id.) 

Here, Plaintiff prays for special damages and punitive and/or exemplary damages against all Defendants. The purpose of section 425.11 is to require “that plaintiffs in personal injury and wrongful death cases ‘give notice to the defendant of the amount of special and general damages sought to be recovered ... before a default may be taken.’” (Schwab v. Rondel Homes, Inc. (1991) 53 Cal.3d 428, 432.) “[W]hen a statement of damages is required but not served, the underlying entry of default is invalid also and is subject to set-aside.” (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1521.) “Similarly, a statement of punitive damages must be served ‘before a default may be taken, if the motion for default judgment includes a request for punitive damages.’” (Id. citing Code Civ. Proc., § 425.115, subd. (f).)

Therefore, Plaintiff was required to file a statement of damages before requesting entry of default against Defendant. Plaintiff fails to provide any evidence that a statement of damages was served or that no statement of damages is required against Defendant in this action. Moreover, the failure to serve a statement of damages is evidence of an extrinsic mistake that will cost both parties a fair hearing on the merits and is sufficient to justify equitable relief from the Entry of Default. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981 [noting that extrinsic mistake if found when “circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits” or “a mistake led a court to do what it never intended. . . .”].”

Any prejudice Plaintiff asserts it will suffer due to further delays in prosecuting this action is circumvented by the fact that Plaintiff was statutorily obligated to file a statement of damages “before a default may be taken” and failed to do so. (Code Civ. Proc., § 425.11 subd. (c) [italics added].)

For the reasons stated, Defendant’s Motion is GRANTED. 

Conclusion 

Defendant’s Motion to Set Aside the Entry of Default entered on January 29, 2021, is GRANTED.   

Moving party to give notice.