GUADALUPE RAMIREZ VS MARIA HAYDEE CRUZ, ET AL.

Tentative Rulings

Case Number: 18STLC07679    Hearing Date: October 24, 2019    Dept: 94

MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT

(CCP § 473(b), mandatory)

TENTATIVE RULING:

Defendant Extra Space Storage, Inc.’s Motion to Vacate Default and Default Judgment is GRANTED.

OPPOSITION: Defendant Extra Space Storage has not provided a satisfactory explanation for the delay between its discovery of the default and filing this motion.

REPLY: Defendant Extra Space Storage discovered the default in February 2019 and immediately reached out to Plaintiff to have it set aside. After being informed Plaintiff wanted to speak to his legal advisor, Defendant Extra Space Storage reached out again in March 2019. When the parties were not able to reach a resolution, the motion was filed on March 18, 2019.

SUPP. REPLY: The entry of default in September 2018 was the result of improper service and should be stricken.

ANALYSIS:

On May 25, 2018, Plaintiff Guadalupe Ramirez (“Plaintiff”) brought this breach-of-contract action against Defendants Maria Haydee Cruz and Extra Space Storage, Inc. (“ESS”). Following ESS’ failure to file a responsive pleading, Plaintiff filed a request for entry of default on August 22, 2018. On August 31, 2018, the request was rejected for failure to indicate service on a corporate officer or authorized agent.

Plaintiff then filed an Amended Proof of Service and second request for entry of default on September 7, 2018. Default was entered against ESS on the same date. On November 7, 2018, the court set an “OSC re Why the Proof of Service upon Defendant Extra Space Storage, Inc. Should Not Be Stricken for the Failure to Properly Serve a ‘General Manager’ or ‘Agent for Service of Process’. Plaintiff only purported served “Kimberly Moore, Manager,” and not a “General Manager” as set forth in Extra Storage Space, Inc’s ‘Statement of Information (Foreign Corporation)’ filed with the Secretary of State’s office.” (Minute Order, dated 11/07/18.) The OSC was set for February 15, 2019. Also, on November 15, 2018, the court rejected Plaintiff’s request for default judgment against ESS on the same grounds, namely that the proof of service was defective.

On December 18, 2018, Plaintiff filed another proof of personal service indicating that ESS was served through “Vivian Imperial Intake Specialist CT Corp/Extra Space Storage Inc.” (POS, filed 12/18/18.) Plaintiff’s request for default judgment was then entered on January 15, 2019.

On March 18, 2019, ESS filed the instant Motion to Vacate Default and Default Judgment (the “Motion”) under the mandatory provision of CCP § 473(b). The motion initially came for hearing on May 7, 2019, at which time it was continued for further briefing. ESS filed a supplemental brief on June 10, 2019.

The supplemental motion now contends that the default entered on September 7, 2018 was improper. The court agrees and finds that the resulting default judgment must also be struck. The default entered on September 7, 2018 was based on the Amended Proof of Service filed on the same date. Although facially valid insofar as it purported to demonstrate service of the Summons and Complaint on ESS through “Kimberly Moore, Authorized Agent,” ESS has now filed evidence demonstrating that there is no such person associated with its company. (See Supp. Reply, Nelson Decl., ¶5.) Service of the Summons and Complaint on “Kimberly Moore,” therefore, was improper and cannot uphold the September 7, 2018 entry of default.

The default judgment entered on January 15, 2019 is also improper because it follows from the September 7, 2018 entry of default. Plaintiff filed a proof of service as to ESS demonstrating proper service occurred only on December 7, 2018. No default was entered against ESS after that date.

Based on the foregoing, ESS’ Motion to Vacate Default and Default Judgment is GRANTED.

TENTATIVE RULING:

Plaintiff Guadalupe Ramirez’s Motion Compelling Defendant Maria Haydee Cruz To Respond To Form Interrogatories, Set One, is GRANTED. RESPONSES ARE TO BE SERVED WITHIN 20 DAYS.

REQUEST FOR RELIEF: Compel Defendant Maria Haydee Cruz to provide verified responses to the form interrogatories, without objections. (Code Civ. Proc., §§ 2030.290.)

OPPOSITION: None filed as of October 23, 2019.

REPLY: None filed as of October 23, 2019.

Plaintiff Guadalupe Ramirez (“Plaintiff”) propounded Form Interrogatories Set One on Defendant Maria Haydee Cruz (“Defendant”) on July 22, 2019. (Motion, Ramirez Decl., ¶4 and Exh. A.) To date, no responses have been served. (Id. at ¶5.)

There is no requirement for a prior meet and confer effort before a motion to compel initial responses can be filed. (Code Civ. Proc., § 2030.290.) Further, the motion can be brought any time after the responding party fails to provide the responses. (Code Civ. Proc., § 2030.290.) Based on the foregoing, Plaintiff Guadalupe Ramirez’s Motion Compelling Defendant Maria Haydee Cruz To Respond To Form Interrogatories, Set One, is GRANTED. RESPONSES ARE TO BE SERVED WITHIN 20 DAYS.

Moving party to give notice.