This case was last updated from Los Angeles County Superior Courts on 10/29/2020 at 01:11:54 (UTC).

BRIANA NORMAN VS MICHAEL NORTH

Case Summary

On 11/08/2017 BRIANA NORMAN filed a Personal Injury - Motor Vehicle lawsuit against MICHAEL NORTH. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is ELAINE LU. The case status is Pending - Other Pending.

Case Details Parties Dockets

 

Case Details

  • Case Number:

    *******4741

  • Filing Date:

    11/08/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Motor Vehicle

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

ELAINE LU

 

Party Details

Plaintiff

NORMAN BRIANA

Defendants

NORTH SUSAN

NORTH MICHAEL

JPMORGAN CHASE & CO.

Attorney/Law Firm Details

Plaintiff Attorney

WALCH ROBERT STEVEN

Court Documents

Court documents are not available for this case.

 

Docket Entries

  • 10/27/2020
  • DocketMinute Order (Order to Show Cause Re: Entry of Default Judgment/Dismissal)

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  • 10/27/2020
  • DocketOrder to Show Cause Re: Entry of Default Judgment/Dismissal scheduled for 10/27/2020 at 10:30 AM in Spring Street Courthouse at Department 26 updated: Result Date to 10/27/2020; Result Type to Held

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  • 10/23/2020
  • DocketProof of Service (not Summons and Complaint); Filed by: Briana Norman (Plaintiff); As to: Michael North (Defendant); Susan North (Defendant)

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  • 10/20/2020
  • DocketDeclaration of Erin M. Polisano in Support to Continue OSC re Entry Judgment; Filed by: Briana Norman (Plaintiff)

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  • 08/19/2020
  • DocketHearing on Motion to Set Aside/Vacate Default (CCP 473.5) scheduled for 01/19/2021 at 09:00 AM in Spring Street Courthouse at Department 26

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  • 08/18/2020
  • DocketMotion to Set Aside/Vacate Default; Filed by: Michael North (Defendant); Susan North (Defendant); As to: Briana Norman (Plaintiff)

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  • 08/18/2020
  • DocketMemorandum of Points & Authorities; Filed by: Michael North (Defendant); Susan North (Defendant)

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  • 08/18/2020
  • DocketDeclaration in Support of Motion; Filed by: Michael North (Defendant); Susan North (Defendant)

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  • 04/13/2020
  • DocketNotice Re: Continuance of Hearing and Order; Filed by: Clerk

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  • 04/13/2020
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 11/12/2020 at 10:30 AM in Spring Street Courthouse at Department 26 Not Held - Vacated by Court on 04/13/2020

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33 More Docket Entries
  • 11/14/2017
  • Docket** Case Name changed from BRIANNA NORMAN vs MICHAEL NORTH to BRIANA NORMAN vs MICHAEL NORTH

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  • 11/13/2017
  • DocketUpdated -- Summons on Complaint: Name Extension changed from on Complaint to on Complaint

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  • 11/13/2017
  • DocketUpdated -- Briana Norman (Plaintiff): First Name changed from Brianna to Briana

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  • 11/09/2017
  • DocketCase assigned to Hon. Elaine Lu in Department 77 Stanley Mosk Courthouse

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  • 11/09/2017
  • DocketNon-Jury Trial scheduled for 05/08/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 77

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  • 11/09/2017
  • DocketOrder to Show Cause - Failure to File Proof of Service scheduled for 11/12/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 77

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  • 11/08/2017
  • DocketComplaint; Filed by: Brianna Norman (Plaintiff); As to: Michael North (Defendant)

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  • 11/08/2017
  • DocketCivil Case Cover Sheet; Filed by: Brianna Norman (Plaintiff)

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  • 11/08/2017
  • DocketSummons on Complaint; Issued and Filed by: Clerk

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  • 11/08/2017
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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Tentative Rulings

Case Number: 17STLC04741    Hearing Date: January 19, 2021    Dept: 26

Norman v. North, et al.

MOTION TO VACATE DEFAULT JUDGMENT

(CCP § 473(b), 473(d), 473.5)

TENTATIVE RULING:

Defendants Susan North and Michael North’s Motion to Vacate Default is DENIED.

ANALYSIS:

Plaintiff Briana Norman (“Plaintiff”) filed the instant action for motor vehicle negligence against Defendants Susan North and Michael North (“Defendants”) on November 8, 2017. Following Defendants’ failure to file a responsive pleading, the Court entered their default on April 11, 2019.

Defendants filed the instant Motion to Vacate Default on August 18, 2020. To date, no opposition has been filed.

Discussion

Defendants move for relief from the default pursuant to Code of Civil Procedure, section 473, subdivisions (b) and (d), and section 473.5. The Court will consider each basis in turn.

Code of Civil Procedure section 473, subdivision (b)

Under this statute, an application for relief must be made no more than six months after entry of the order 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.) The motion is brought pursuant to discretionary relief prong of section 473, subdivision (b) for Defendant Lovett’s own mistake, inadvertence, surprise or neglect.

The Court finds relief is not timely sought under the statute. Default was entered on April 11, 2019, but the instant Motion was filed more than a year later on August 18, 2020. The six-month deadline is jurisdictional and not subject to tolling. (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.) The Court has no authority to relieve Defendants from the entry of default under this statute.

Therefore, relief from the entry of default under of Civil Procedure section 473, subdivision (b) is denied.

Code of Civil Procedure section 473.5

The Motion is also brought under Code of Civil Procedure section 473.5, subdivision (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.

(Code Civ. Proc., § 473.5, subd. (a).) Additionally, the motion “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.” (Code Civ. Proc., § 473.5, subd. (b).)

There is no indication in the Court’s records that written notice of the entry of default was served on Defendants making the outer deadline to file a motion under Code of Civil Procedure section 473.5 April 11, 2021. However, there is also reasonabless requirement in bringing a motion under this staute. Defendants state they received notice of this action in May 2020 and filed the instant Motion three months later. (Motion, Kothary Decl., ¶¶2-3; Susan North Decl., ¶5; Michael North Decl., ¶5.) Therefore, Defendants have shown that the timing of this Motion is reasonably diligent.

However, Defendants do not provide any information from which the Court can determine that lack of actual notice was not caused by their own avoidance of service or inexcusable neglect. (See Motion, Susan North Decl.; Michael North Decl.) The proof of service of summons was filed on May December 27, 2017 and is attested to by a registered process server. (Proof of Service, filed 12/27/17, ¶7.) Therefore, the proof of service is entitled to a presumption of validity. (Cal. Evid. Code, § 647.) The proof of service states that the papers were delivered to 21616 Califa Street, # 305, Woodland Hills, California, which is described as “current D.M.V. address.” (Id. at ¶¶4-5.)

Defendants state that they moved from the Califa address in April 2016. (Motion, Susan North Decl., ¶¶1-3; Michael North Decl., ¶¶1-3.) No information is provided regarding whether their address was updated with the Department of Motor Vehicles such that service could be accomplished at the correct address. The Motion, therefore, does not show that the lack of actual notice was not the result of Defendants’ own avoidance of service or inexcusable neglect.

The request for relief under Code of Civil Procedure section 473.5, therefore, is denied.

Code of Civil Procedure section 473, subdivision (d)

The request to vacate the default and default judgment is also brought pursuant to Code of Civil Procedure section 473, subdivision (d), under which “[t]he court may . . . set aside any void judgment or order.” (Code Civ. Proc., § 473, subd. (d).) In County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1229, the Court of Appeal explained:

[W]here it is shown that there has been a complete failure of service of process upon a defendant, he generally has no duty to take affirmative action to preserve his right to challenge the judgment or order even if he later obtains actual knowledge of it because “[w]hat is initially void is ever void and life may not be breathed into it by lapse of time.” (Morgan, supra, 105 Cal.App.2d at p. 731, 234 P.2d 319.) Consequently under such circumstances, “neither laches nor the ordinary statutes of limitation may be invoked as a defense” against an action or proceeding to vacate such a judgment or order. (Id. at p. 732, 234 P.2d 319.) And, where evidence is admitted without objection that shows the existence of the invalidity of a judgment or order valid on its face, “it is the duty of the court to declare the judgment or order void.” (Thompson v. Cook (1942) 20 Cal.2d 564, 569, 127 P.2d 909 (Cook).)

(County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215.) There being no deadline to bring a motion under Code of Civil Procedure section 473, subdivision (d), Defendants’ request for relief under this statute is timely.

Defendants must show that service of the Summons and Complaint did not comply with the statutory requirements. As discussed above, the proofs of substitute service filed on December 7, 2017 are attested to by a registered process server, and therefore, entitled to a presumption of validity. (Cal. Evid. Code, § 647.) Also as discussed above, Defendants’ evidence with respect to the service address is minimal. Other than conclusory statements regarding their residence, Defendants have not shown through any other evidence that the Califa address was proper for service, for example, because it was not their usual mailing address as reported by the Department of Motor Vehicles.

Defendants’ evidence, therefore, is insufficient to overcome the presumption of proper service and to demonstrate that the entry of default that followed was void under Code of Civil Procedure section 473, subdivision (d).

Conclusion

Defendants Susan North and Michael North’s Motion to Vacate Default is DENIED.

Plaintiff to give notice.

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