This case was last updated from Los Angeles County Superior Courts on 10/21/2021 at 03:56:13 (UTC).

AMERICAN CONTRACTORS INDEMNITY COMPANY, A CALIFORNIA CORPORATION VS MICHAEL JAMES PORTEOUS

Case Summary

On 12/26/2019 AMERICAN CONTRACTORS INDEMNITY COMPANY, A CALIFORNIA CORPORATION filed a Contract - Other Contract lawsuit against MICHAEL JAMES PORTEOUS. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is SERENA R. MURILLO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******1731

  • Filing Date:

    12/26/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

Judge Details

Judge

SERENA R. MURILLO

 

Party Details

Plaintiff

AMERICAN CONTRACTORS INDEMNITY COMPANY A CALIFORNIA CORPORATION

Defendant

PORTEOUS MICHAEL JAMES AKA MIKE PORTEOUS

Attorney/Law Firm Details

Plaintiff Attorney

STEVENSON TRACY

 

Court Documents

Notice (name extension) - Notice Letter to Court Pursuant to California Rules of Court, rule 5.125 (d)(3)

10/13/2021: Notice (name extension) - Notice Letter to Court Pursuant to California Rules of Court, rule 5.125 (d)(3)

Notice of Rejection - Pleadings - Notice of Rejection - Pleadings

10/14/2021: Notice of Rejection - Pleadings - Notice of Rejection - Pleadings

Certificate of Mailing for - Certificate of Mailing for [Minute Order (Order to Show Cause Re: Failure to File Proof of Service of S...)]

9/29/2021: Certificate of Mailing for - Certificate of Mailing for [Minute Order (Order to Show Cause Re: Failure to File Proof of Service of S...)]

Certificate of Mailing for - Certificate of Mailing for (Order to Show Cause Re: Failure to File Proof of Service of S...) of 09/21/2021

9/21/2021: Certificate of Mailing for - Certificate of Mailing for (Order to Show Cause Re: Failure to File Proof of Service of S...) of 09/21/2021

Minute Order - Minute Order (Order to Show Cause Re: Failure to File Proof of Service of S...)

9/21/2021: Minute Order - Minute Order (Order to Show Cause Re: Failure to File Proof of Service of S...)

Declaration (name extension) - Declaration in Response to Order to Show Cause Re: Failure to File Proof of Service

9/16/2021: Declaration (name extension) - Declaration in Response to Order to Show Cause Re: Failure to File Proof of Service

Proof of Personal Service - Proof of Personal Service

7/21/2021: Proof of Personal Service - Proof of Personal Service

Notice of Rejection Default/Clerk's Judgment - Notice of Rejection Default/Clerk's Judgment

7/28/2021: Notice of Rejection Default/Clerk's Judgment - Notice of Rejection Default/Clerk's Judgment

Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

7/28/2021: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

Motion to Quash Service of Summons - Motion to Quash Service of Summons

6/9/2020: Motion to Quash Service of Summons - Motion to Quash Service of Summons

Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

6/9/2020: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

Motion to Set Aside/Vacate Default and / or Default Judgment - Motion to Set Aside/Vacate Default and / or Default Judgment

6/9/2020: Motion to Set Aside/Vacate Default and / or Default Judgment - Motion to Set Aside/Vacate Default and / or Default Judgment

Certificate of Mailing for - Certificate of Mailing for (Court Order) of 06/12/2020

6/12/2020: Certificate of Mailing for - Certificate of Mailing for (Court Order) of 06/12/2020

Minute Order - Minute Order (Court Order)

6/12/2020: Minute Order - Minute Order (Court Order)

Order on Court Fee Waiver (Superior Court) - Order on Court Fee Waiver (Superior Court)

6/12/2020: Order on Court Fee Waiver (Superior Court) - Order on Court Fee Waiver (Superior Court)

Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

9/10/2020: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

Certificate of Mailing for - Certificate of Mailing for (Hearing on Motion to Set Aside/Vacate Default and Default Jud...) of 09/22/2020

9/22/2020: Certificate of Mailing for - Certificate of Mailing for (Hearing on Motion to Set Aside/Vacate Default and Default Jud...) of 09/22/2020

Minute Order - Minute Order (Hearing on Motion to Set Aside/Vacate Default and Default Jud...)

9/22/2020: Minute Order - Minute Order (Hearing on Motion to Set Aside/Vacate Default and Default Jud...)

30 More Documents Available

 

Docket Entries

  • 12/29/2022
  • Hearing12/29/2022 at 08:30 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service

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  • 11/22/2021
  • Hearing11/22/2021 at 09:30 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Trial Setting Conference

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  • 10/14/2021
  • DocketNotice of Rejection - Pleadings; Filed by: Clerk

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  • 10/13/2021
  • DocketNotice Letter to Court Pursuant to California Rules of Court, rule 5.125 (d)(3); Filed by: American Contractors Indemnity Company, A California corporation (Plaintiff); As to: Michael James Porteous (Defendant)

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  • 09/29/2021
  • DocketCertificate of Mailing for [Minute Order (Order to Show Cause Re: Failure to File Proof of Service of S...)]; Filed by: Clerk

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  • 09/21/2021
  • DocketTrial Setting Conference scheduled for 11/22/2021 at 09:30 AM in Spring Street Courthouse at Department 26

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  • 09/21/2021
  • DocketMinute Order (Order to Show Cause Re: Failure to File Proof of Service of S...)

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  • 09/21/2021
  • DocketCertificate of Mailing for (Order to Show Cause Re: Failure to File Proof of Service of S...) of 09/21/2021; Filed by: Clerk

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  • 09/21/2021
  • DocketOrder to Show Cause Re: Failure to File Proof of Service of Summons and Complaint scheduled for 09/21/2021 at 09:30 AM in Spring Street Courthouse at Department 26 updated: Result Date to 09/21/2021; Result Type to Held

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  • 09/16/2021
  • DocketDeclaration in Response to Order to Show Cause Re: Failure to File Proof of Service; Filed by: American Contractors Indemnity Company, A California corporation (Plaintiff)

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56 More Docket Entries
  • 12/30/2019
  • DocketNon-Jury Trial scheduled for 06/24/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 12/30/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 12/29/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 12/30/2019
  • DocketCase assigned to Hon. Serena R. Murillo in Department 94 Stanley Mosk Courthouse

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  • 12/26/2019
  • DocketComplaint; Filed by: American Contractors Indemnity Company, A California corporation (Plaintiff); As to: Michael James Porteous (Defendant)

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  • 12/26/2019
  • DocketSummons on Complaint; Issued and Filed by: American Contractors Indemnity Company, A California corporation (Plaintiff); As to: Michael James Porteous (Defendant)

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  • 12/26/2019
  • DocketCivil Case Cover Sheet; Filed by: American Contractors Indemnity Company, A California corporation (Plaintiff); As to: Michael James Porteous (Defendant)

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  • 12/26/2019
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 12/26/2019
  • DocketFirst Amended Standing Order; Filed by: Clerk

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  • 06/09/2012
  • DocketUpdated -- Request to Waive Court Fees: Filed By: Michael James Porteous (Defendant); Result: Granted; Result Date: 06/09/2012; As To Parties: removed

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  • 06/09/2012
  • DocketUpdated -- Request to Waive Court Fees: Filed By: Michael James Porteous (Defendant); Result: Granted; Result Date: 06/09/2012; As To Parties: removed

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Tentative Rulings

Case Number: 19STLC11731    Hearing Date: February 02, 2021    Dept: 26

ACIC v. Porteous, et al.

VACATE DEFAULT; QUASH SERVICE

(CCP §§ 418.10, 473)

TENTATIVE RULING:

Defendant Michael James Porteous’ Motion to Vacate Entry of Default and Motion to Quash Service of Summons and Complaint are GRANTED. Trial date set for June 24, 2021 is vacated.

ANALYSIS:

On December 26, 2019, Plaintiff American Contractors Indemnity Company (“Plaintiff”) filed the instant action for breach of contract against Defendant Michael James Porteous (“Defendant”). When Defendant failed to file a responsive pleading, Plaintiff obtained entry of default on April 28, 2020. On June 9, 2020, Defendant filed the instant (1) Motion to Vacate Entry of Default and any Default Judgment (“the Motion to Vacate”); and (2) Motion to Quash Service of the Summons and Complaint (“the Motion to Quash”) (collectively, “the Motions”).

The Motions came for hearing on September 22, 2020, at which time the Court found Defendant had demonstrated a basis to vacate the entry of default under Code of Civil Procedure section 473, subdivision (b) but had failed to submit a copy of his proposed responsive pleading as mandated by the statute. (Minute Order, 9/22/20.) The Court continued the hearing to allow Defendant to submit a copy of his proposed responsive pleading. (Ibid.)

At the second hearing on October 22, 2020, both parties appeared and the Court heard oral argument. (Minute Order, 10/22/20.) The Court continued the hearing to December 3, 2020. At the hearing on December 3, 2020, the parties again appeared and the Court heard oral argument. (Minute Order, 12/3/20.) At Defendant’s request, the Court continued the hearing to February 2, 2021. (Ibid.)

On January 7, 2021, Defendant filed an Answer to the Complaint. As Defendant has provided a copy of his Answer, the Court grants Defendant’s Motion to Vacate Entry of Default.

“A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: To quash service of summons on the ground of lack of jurisdiction of the court over him or her.” (Code Civ. Proc., § 418.10, subd. (a)(1), emphasis added.) Having determined the request to vacate default and default judgment should be granted because service of the Summons and Complaint did not substantially comply with the statutory requirements, the Court grants Defendants’ request to quash service of the Summons and Complaint.

Conclusion

Defendant Michael James Porteous’ Motion to Vacate Entry of Default and Motion to Quash Service of Summons and Complaint are GRANTED. Trial date set for June 24, 2021 is vacated.

Court clerk to give notice.

Case Number: 19STLC11731    Hearing Date: December 03, 2020    Dept: 26

ACIC v. Porteous, et al

VACATE DEFAULT; QUASH SERVICE

(CCP §§ 418.10, 473)

TENTATIVE RULING:

Defendant Michael James Porteous’ Motion to Vacate Entry of Default and Motion to Quash Service of Summons and Complaint are DENIED.

ANALYSIS:

On December 26, 2019, Plaintiff American Contractors Indemnity Company (“Plaintiff”) filed the instant action for breach of contract against Defendant Michael James Porteous (“Defendant”). When Defendant failed to file a responsive pleading, Plaintiff obtained entry of default on April 28, 2020. On June 9, 2020, Defendant filed the instant (1) Motion to Vacate Entry of Default and any Default Judgment (“the Motion to Vacate”); and (2) Motion to Quash Service of the Summons and Complaint (“the Motion to Quash”) (collectively, “the Motions”).

The Motions came for hearing on September 22, 2020, at which time the Court found Defendant had demonstrated a basis to vacate the entry of default under Code of Civil Procedure section 473, subdivision (b) but had failed to submit a copy of his proposed responsive pleading as mandated by the statute. (Minute Order, 9/22/20.) The Court continued the hearing to allow Defendant to submit a copy of his proposed responsive pleading. (Ibid.)

At the second hearing on October 22, 2020, both parties appeared and the Court heard oral argument. (Minute Order, 10/22/20.) The Court continued the hearing to December 3, 2020.

To date, however, no additional briefing has been filed demonstrating that submission of Defendant’s proposed responsive pleading. The Court cannot grant relief from the entry of default under Code of Civil Procedure section 473, subdivision (b) without submission of the proposed responsive pleading. (Code Civ. Proc., § 473, subd. (b); Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 401.) Having afforded Defendant multiple opportunities to correct this issue, the Court warned that failure to comply with its order might result in the Motions being placed off calendar or denied. (Ibid.)

Therefore, Defendant’s Motion to Vacate Entry of Default and Motion to Quash Service of Summons and Complaint are DENIED.

Plaintiff to give notice.

Case Number: 19STLC11731    Hearing Date: October 22, 2020    Dept: 26

ACIC v. Porteous, et al.

VACATE DEFAULT; QUASH SERVICE

(CCP §§ 418.10, 473)

TENTATIVE RULING:

Defendant Michael James Porteous’ Motion to Vacate Entry of Default and Motion to Quash Service of Summons and Complaint are DENIED.

ANALYSIS:

On December 26, 2019, Plaintiff American Contractors Indemnity Company (“Plaintiff”) filed the instant action for breach of contract against Defendant Michael James Porteous (“Defendant”). When Defendant failed to file a responsive pleading, Plaintiff obtained entry of default on April 28, 2020.On June 9, 2020, Defendant filed the instant (1) Motion to Vacate Entry of Default and any Default Judgment (“the Motion to Vacate”); and (2) Motion to Quash Service of the Summons and Complaint (“the Motion to Quash”) (collectively, “the Motions”).

The Motions came for hearing on September 22, 2020, at which time the Court found Defendant had demonstrated a basis to vacate the entry of default under Code of Civil Procedure section 473, subdivision (b) but had failed to submit a copy of his proposed responsive pleading. (Minute Order, 9/22/20.) The Court continued the hearing to allow Defendant to submit a copy of his proposed responsive pleading. (Ibid.)

To date, however, no additional briefing has been filed demonstrating that submission of Defendant’s proposed responsive pleading. The Court cannot grant relief from the entry of default under Code of Civil Procedure section 473, subdivision (b) without submission of the proposed responsive pleading. Having afforded Defendant an opportunity to correct this issue, the Court warned that failure to comply with its order might result in the Motions being placed off calendar or denied. (Ibid.)

Therefore, Defendant’s Motion to Vacate Entry of Default and Motion to Quash Service of Summons and Complaint are DENIED.

Clerk to give notice.

Case Number: 19STLC11731    Hearing Date: September 22, 2020    Dept: 26

VACATE DEFAULT; QUASH SERVICE

(CCP §§ 418.10, 473)

TENTATIVE RULING:

ANALYSIS:

On December 26, 2019, Plaintiff American Contractors Indemnity Company (“Plaintiff”) filed the instant action for breach of contract against Defendant Michael James Porteous (“Defendant”). When Defendant failed to file a responsive pleading, Plaintiff obtained entry of default on April 28, 2020.

On June 9, 2020, Defendant filed the instant (1) Motion to Vacate Entry of Default and any Default Judgment; and (2) Motion to Quash Service of the Summons and Complaint. To date, no opposition has been filed.

Discussion

Defendant moves to vacate the entry of default under Code of Civil Procedure section 473, subdivision (b) on the grounds that he was never personally or otherwise served in this action. Under this statute, the court has broad discretion to vacate the entry of default, default judgment or a dismissal, but that discretion can be exercised only if the defendant establishes a proper ground for relief, by the proper procedure and within the set time limits. If discretionary relief is sought based on a party’s “mistake, inadvertence, surprise or excusable neglect,” as it is here, the motion cannot be brought more than 6 months after the entry of default and must be made within a “reasonable time.” (Code Civ. Proc., § 473, subd. (b).)

The Motion was timely brought less than two months after entry of default against Defendant. Defendant must now support his claim of non-service (and therefore surprise at the entry of default) by showing that service of the Summons and Complaint did not comply with the statutory requirements. The proof of substitute service filed on March 30, 2020 is attested to by a registered process server, and therefore, entitled to a presumption of validity. (Cal. Evid. Code, § 647.) The proof of service states that Defendant was sub-served by leaving the Summons and Complaint at 7894 Port Arthur Drive, Eastvale, California with “Jane Doe” a co-occupant described as a

Caucasian female 39+ years old, 5 feet and 7 inches tall, 175 pounds, with blonde hair and blue eyes. (Proof of Service, filed 3/30/20, ¶¶4-5.) The proof of service is also accompanied by a declaration of mail and declaration of diligence, thereby demonstrating compliance with the requirements for substitute service. (Code Civ. Proc., § 415.20.) Service was effectuated on March 28, 2020, ten days after mailing. (Code Civ. Proc., § 415.20.)

Defendant submits a declaration in which he states that he was never personally served with the papers in this action, nor served by any other means. (Motion, Porteous Decl., p. 1:5-7.) He explains that the address listed on the proof of service is not his address and the woman described as “co-occupant” is not known to him. (Id. at p. 1: 10-12.) It was only upon receiving mailers from local law firms referring to an action against him that Defendant began to suspect there was a case against him. (Id. at p. 1:7-10.)

This evidence is sufficient to overcome the presumption of service and shifts the burden of proof to Plaintiff to show that service of the Summons and Complaint substantially complied with the statutory requirements. (See American Express Centurion Bank v. Zara

Therefore, the hearing on Defendant’s Motion to Vacate Default is CONTINUED TO OCTOBER 22, 2020 AT 09:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. AT LEAST 16 COURT DAYS PRIOR TO THE NEW HEARING DATE DEFENDANT IS TO FILE AND SERVE A SUPPLEMENTAL DECLARATION ATTACHING A COPY OF THE PROPOSED RESPONSE TO THE COMPLAINT. FAILURE TO DO SO MAY RESULT IN THE MOTION TO VACATE BEING DENIED OR PLACED OFF CALENDAR.

Motion to Quash Service of the Summons and Complaint

When a motion to quash is brought concurrently with a motion to vacate default, the court must rule on the motion to vacate first. (Steven M. Garber & Assocs. v Eskandarian (2007) 150 CA4th 813, 819 (holding that a defendant against whom a default has been entered is out of court and is not entitled to take any further affirmative steps in the action except for a motion for relief from the default).)

Moving party to give notice.

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