GREEN KNIGHT SECURITY INC. VS MARGAUX VIERA

Tentative Rulings

Case Number: 20STLC05076    Hearing Date: March 03, 2021    Dept: 25

HEARING DATE: Wed., March 3, 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 is GRANTED. The default entered on August 13, 2020 and default judgment entered on September 4, 2020 are HEREBY VACATED. However, Defendant’s request to quash service of the Summons and Complaint is 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

DEF. SUPP. PAPERS: Filed on February 4, 2021 [ ] Late [ ] None

PLF. SUPP. PAPERS: None filed as of March 2, 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 of $24,999.00 was entered on September 4, 2020. Despite being in default, Defendant filed an Answer, on September 4, 2020, which was not rejected by the court clerk.

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.

At the initial January 25, 2021 hearing, the Court noted Defendant argued both that she was never served with the Summons and Complaint and that she found a copy of the Summons and Complaint when she looked through her “stack” of legal papers related to a divorce proceeding. (1/15/21 Minute Order.) The Court continued the hearing and requested a supplemental declaration from Defendant explaining the situation. (Id.)

On February 4, Defendant filed a supplemental declaration. Plaintiff did not file a response to Defendant’s declaration.

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.)

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 because she did not receive actual notice of this action. (Mot., p. 3:13-23; pp. 4:15-5:13.) Defendant states that due to her complex ongoing divorce case, she is regularly served with legal documents, both personally and by mail. (Reply, Viera Decl., ¶¶ 5, 9.) Although she admits she received a copy of the Summons and Complaint, likely via mail, she states she was not aware those documents were different from courtesy copies of legal documents she receives on an almost weekly basis from her divorce attorney. (Reply, Viera Decl., ¶ 9, 2/4/21 Supp. Viera Decl., ¶ 11.) Because she doesn’t usually examine the large number of documents she receives related to her divorce proceeding, Defendant argues she did not realize she had an obligation to respond. (2/4/21 Supp. Viera Decl., ¶ 13.) Lastly, Defendant states she paid two of Plaintiff’s agents for their services, so she had no reason to believe Plaintiff would file a suit against her. (2/4/21 Supp. Viera Decl., ¶ 19.)

Based on Defendant’s timely request for relief, Defendant’s affidavit of fault demonstrating her mistake and inadvertence, and the policy favoring trial on the merits (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 134), Defendant’s request to set aside the default and default judgment is GRANTED.

B. Motion to Quash

Defendant argues service of the Summons and Complaint should be quashed because Defendant was never actually served, personally or by substitute service. (Mot., pp. 5:15-6:13; Reply, Viera Decl., ¶¶ 6; 2/4/21 Supp. Viera Decl., ¶¶ 9, 14-15.)

“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.)

“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 presumption of valid service. (See American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; see also Evid. Code § 647.) This presumption is rebuttable. (See id.) The party seeking to defeat 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; cf. People v. Chavez (1991) 231 Cal.App.3d 1471, 1483 [“If some fact be presumed, the opponent of that fact bears the burden of producing or going forward with evidence sufficient to overcome or rebut the presumed fact.”].) Merely denying service took place without more is insufficient to overcome the presumption. (See Yadegar, supra, 194 Cal.App.4th at 1428.)

Plaintiff filed a proof of service on July 16, 2020 purporting to show that Defendant was substitute served by John Duong (“Duong”), a registered process server, on July 6, 2020 at 820 North Verano, Glendora, CA 91741 (the “Verano Address”), Defendant’s residence, by serving Jane Doe who refused to provide her name but is described as a Hispanic woman in her 30’s, approximately 140 pounds, 5 feet 4 inches tall, with black hair and brown eyes. (7/16/20 Proof of Service.) Substitute service is permitted at a person’s “dwelling house, usual place of abode, usual place of business, or usual mailing address…in the presence of a competent member of the household…” (Code Civ. Proc., § 415.20, subd. (b).) The proof of service also includes a declaration of due diligence and a declaration of mailing, stating a copy of the Summons and Complaint were mailed to the Verano Address. (Id.)

Defendant states she does not recall any contact with Duong and that her mother and housekeeper, the other members of Defendant’s household, also do not recall being informed they were served with legal documents on July 6, 2020 or any other date. (Reply, Viera Decl., ¶¶ 6; 2/4/21 Supp. Viera Decl., ¶¶ 9-10.) Notably, Defendant does not provide the declarations of her mother or her housekeeper attesting so this.

In Opposition, Plaintiff provides the declaration of Duong stating that on July 6, 2020, as he approached the Verano Address, he saw two women behind a gate. (Oppo., Duong Decl., ¶ 5.) Duong saw and heard a third person in the garden off to the side yelling to the people at the door “not to take anything.” (Id.) As a result, Duong took pictures, attached to the declaration, which show two women by the front door, behind a closed gate. (Id., Attach.) Duong states he served a woman with dark hair in her thirties by leaving a copy of the documents at the gate and walking away.

Defendant’s supplemental papers take issue with an apparent discrepancy in the proof of service and the declaration of due diligence. (Id. at ¶ 6.) The entry for July 6, 2020 on the declaration of due diligence states:

“NOT HOME PER FEMALE OCCUPANT, ANOTHER FEMALE (42 5’7” 140LBS CAUC BROWN HAIR) WAS YELLING AT HERE [SIC] TO WALK AWAY AND NOT ACCEPT PAPERS. SERVICE ANNOUNCED AND DOCUMENTS LEFT WITH FEMALE OCCUPANT…” (7/16/20 Proof of Service.) (Emphasis added.)

Defendant argues this demonstrates Plaintiff’s process server is being inconsistent because he states he served a Hispanic woman in her thirties in the proof of service but a Caucasian woman in the declaration of due diligence. (2/4/21 Supp. Viera Decl., ¶¶ 6-8.) However, the Court discerns no inconsistencies. The proof of service clearly demonstrates that Duong described two different women present at the Verano Address on July 6, 2020 and that he served one of them, the Hispanic woman. (7/16/20 Proof of Service.) The Court also notes that Defendant does not dispute the photographs submitted in Duong’s declaration were taken in front of her home or that the women in the photographs are not of herself or a member of her household.

Based on the evidence presented, the Court finds Defendant was properly substitute served. Accordingly, the Defendant’s Motion to Quash is DENIED.

1. Conclusion & Order

Defendant Margaux Viera’s Motion to Set Aside Default and Default Judgment is GRANTED. The default entered on August 13, 2020 and default judgment entered on September 4, 2020 are HEREBY VACATED. However, Defendant’s request to quash service of the Summons and Complaint is DENIED.

Moving party is ordered to give notice.

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.