GREEN KNIGHT SECURITY INC. VS MARGAUX VIERA

Tentative Rulings

Case Number: 20STLC05076    Hearing Date: January 25, 2021    Dept: 25

HEARING DATE: Mon., January 25, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Green Knight Security, Inc. v. Viera COMPL. FILED: 06-17-20

CASE NUMBER: 20STLC05076 DEFAULT: 08-13-20

PROCEEDINGS: MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT AND TO QUASH SERVICE OF SUMMONS

MOVING PARTY: Defendant Margaux Viera

RESP. PARTY: Plaintiff Green Knight Security, Inc.

MOTION TO SET ASIDE/VACATE DEFAULT; QUASH SERVICE OF SUMMONS

(CCP §§ 418.10; 473(b); 473.5)

TENTATIVE RULING:

Defendant Margaux Viera’s Motion to Set Aside Default and Default Judgment and to Quash Service of Summons is CONTINUED TO MARCH 3, 2021 AT 10:00 A.M. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defendant must file and serve supplemental papers addressing the deficiencies noted herein. Failure to do so may result in the Motion being placed off calendar or denied.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on January 11, 2021 [ ] Late [ ] None

REPLY: Filed on January 12, 2021 [ ] Late [ ] None

ANALYSIS:

1. Background

On June 17, 2020, Plaintiff Green Knight Security, Inc. (“Plaintiff”) filed an action for breach of contract against Defendant Margaux Viera (“Defendant”). Following Defendant’s failure to answer the Complaint, default was entered against her on August 13, 2020. A default judgment was thereafter entered in the amount of $24,999.00 on September 4, 2020.

Defendant filed the instant Motion to Set Aside Default and Default Judgment and to Quash Service of Summons (the “Motion”) on September 8, 2020. Plaintiff filed an Opposition on January 11, and Defendant filed a Reply on January 12.

1. Legal Standard & Discussion

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 Cal.App.4th 813, 823-24 [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].) Accordingly, the Court considers Defendant’s request for relief from default first.

A. Request to Set Aside Default and Default Judgement

Defendant seeks relief from default and default judgment under Code of Civil Procedure section 473, subdivision (b), and section 473.5. (Mot., p. 3:13-23.) Under section 473, subdivision (b), an application for relief 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.) Code of Civil Procedure section 473.5, on the other hand, provides that “[w]hen 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…and for leave to defend the action.” (Code Civ. Proc., § 473.5, subd. (a).) The motion must be made within a reasonable time, but not exceeding two years after the entry of default judgment or 180 days after service on him or her of a written notice of the default or default judgment. (Id.) In addition, the Motion must “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,” as well as a copy of the proposed pleading to be filed in the action. (Code Civ. Proc., § 473.5, subd. (b).)

Defendant’s Motion is timely. She seeks to set aside the default and default judgment due to Plaintiff’s mistake, inadvertence, surprise, or excusable neglect or, alternatively, because she did not receive actual notice of this action. (Mot., p. 3:13-23; pp. 4:15-5:13.) Specifically, Defendant states that she was never personally or substitute-served with the Summons and Complaint or with any paperwork related to this proceeding. (1/12/21 Viera Decl., ¶¶ 4, 6, 7.) However, Defendant also contradictorily states that after speaking with her attorney on August 1, she “looked back through [her] stack of legal documents and found Plaintiff’s complaint.” (Id. ¶ 9.) Thus, before reaching a final decision, Defendant is ordered to file and serve a supplemental declaration clarifying the situation.

B. Motion to Quash

As Defendant’s request to set aside the default must be resolved first, the hearing on the Motion to Quash is CONTINUED.

1. Conclusion & Order

For the foregoing reasons, Defendant Margaux Viera’s Motion to Set Aside Default and Default Judgment and to Quash Service of Summons is CONTINUED TO MARCH 3, 2021` AT 10:00 A.M. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defendant must file and serve supplemental papers addressing the deficiencies noted herein. Failure to do so may result in the Motion being placed off calendar or denied.

Moving party is ordered to give notice.