JORDAN RANDALL VS SEANN DUFF

Tentative Rulings

Case Number: 18STLC13884    Hearing Date: March 01, 2021    Dept: 25

Case Number: 19STLC09140    Hearing Date: March 01, 2021    Dept: 25

HEARING DATE: Mon., March 1, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Mountain Recovery, LLC v. Ortega, et al. COMPL. FILED: 10-13-19

CASE NUMBER: 19STLC09140 DEFAULT: 12-02-19

PROCEEDINGS: MOTION FOR ORDER OF RELIEF SETTING ASIDE DEFAULT JUDGMENT

MOVING PARTY: Defendants Jose Ortega and Soledad Ortega

RESP. PARTY: None

MOTION TO SET ASIDE/VACATE DEFAULT & DEFAULT JUDGMENT

(CCP § 473(b), (d))

TENTATIVE RULING:

Defendants Jose Ortega and Soledad Ortega’s Motion for Order of Relief Setting Aside Default Judgment is CONTINUED TO APRIL 27, 2021 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defendants must submit supplemental papers regarding the purported service of the Summons and Complaint as requested 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: None filed as of February 25, 2021 [ ] Late [X] None

REPLY: None filed as of February 25, 2021 [ ] Late [X] None

ANALYSIS:

1. Background

On October 3, 2019, Plaintiff Mountain Recovery, LLC (“Plaintiff”) filed an action against Defendants Jose Ortega a.k.a. Jose Luis Ortega (“Jose”) and Soledad Ortega a.k.a. Soledad Ochoa Ortega (“Soledad”). Following Defendants’ failure to respond, default was entered against both of them on December 2, 2019. A default judgment of $13,235.36 was thereafter entered on February 21, 2020.

On August 19, 2020, Defendants and Real Party in Interest, Infinity Insurance Company (“Infinity”), filed the instant Motion for Order of Relief Setting Aside Default Judgment (the “Motion”). To date, no opposition has been filed.

1. Legal Standard & Discussion

A. CCP § 473(b)

Defendants and Infinity seek to set aside the default and default judgment entered against Defendants on December 2, 2019 and February 21, 2020, respectively, on the basis of surprise under Section 473, subdivision (b). (Mot., p. 2:3-18; p. 14:7-15:13.) A defendant’s insurer has standing to bring a motion to set aside a default and default judgment because it would be obligated to pay any judgment rendered against a defendant. (Clemmer v. Hartford Insurance Co. (1979) 22 Cal.3d 865, 885-86 (overruled on other grounds); Ins. Code § 11580, sub. (b)(2).) The Motion is accompanied by declarations from Mark Gibson, a Litigation Specialist with Infinity, attorney Irene Borromeo who was assigned to this case on or about January 2, 2020, and attorney Michelle DeMaio who was assigned to this case on July 29, 2020.

Litigation Specialist Gibson states that on September 25, 2019, he reached out to Reyna Alvarado (“Alvarado”) with Safeway Insurance regarding a settlement offer for an alleged vehicle accident between their insureds. (Mot., Gibson Decl., ¶ 3.) Plaintiff is a subrogee of Safeway Insurance. (Compl., ¶ 2.) On November 27, 2019, Alvarado informed Gibson that a lawsuit had been filed but had not yet been served. (Mot., Gibson Decl., ¶ 7.) Gibson received a copy of the lawsuit on January 2, 2020, at which time it was referred to in-house counsel, Irene Borromeo. (Id. at ¶ 9.) By the time the matter was assigned to counsel Borromeo, default had already been entered against Defendants. Thus, Defendants and Infinity argue, the default was taken by surprise and the default and default judgment must be vacated under the mandatory provision of Section 473, subdivision (b). (Mot., pp. 6:21-7:8; 14:21-15:13.)

“Section 473(b) provides for both discretionary and mandatory relief. [Citation.]” (Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.) Under the discretionary provision, an application for relief under this section 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.) (Italics added.) The mandatory provision provides:

“Notwithstanding any other requirement of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc., § 473, subd. (b).) (Italics added.)

Defendants are not entitled to relief under the mandatory provision. Default was entered on December 2, 2019, one month before attorney Borromeo was assigned to the case. As noted above, the court must vacate a default and default judgment based on an attorney affidavit of fault, “unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc., § 473, subd. (b).) As no attorney was assigned to this matter when the default was entered, the Court cannot find the default was entered to the attorney’s surprise.

Defendants and Infinity cite Jade K. v. Viguri (1989) 210 Cal.App.3d 1459 to argue that an insurer for a defendant is entitled to relief from default when it does not receive timely notice of the default entered. (Mot., pp. 8:23-9:14.) In Jade K., default against the defendant was entered in September 1987, defendant’s insurer received notice of the default in November 1987, a default judgment was entered against the defendant on December 1, 1987, and the defendant’s insurer filed a motion to vacate the default judgment against defendant on December 2, 1987. (Jade K. v. Viguri, supra, 210 Cal.App.3d at 1463-64.) The Court of Appeals held that the trial court had abused its discretion in denying the insurer’s motion to set aside the default and default judgment “since defendant had failed to notify the insurance company of the lawsuit until after entry of default, and after notice, the company had acted within a reasonable time to assume control of the action.” (Id. at 1459-60.) (Italics added.)

Here, Infinity’s counsel Borromeo discovered the default as early as January 23, 2020. (Mot., Borromeo Decl., ¶ 4.) Yet Defendants and Infinity waited approximately eight months before seeking relief from the default. Thus, unlike the insurer in Jade K, which moved for relief within two months of discovering the default against its insured and only one day after default judgment was entered, Infinity did not act within a reasonable time to take control of this action.

Nor is this motion timely under the discretionary provision. When the discretionary provision applies, the request for relief from default and default judgment must be made within six months of entry of the default, not the default judgment. (Rutan v. Summit Sports, Inc. (1985) 173. Cal.App.3d 965, 970.) Thus, because the Motion was filed over eight months after default was entered, it is untimely under Section 473, subdivision (b).

B. CCP § 473(d)

Defendants and Infinity also argue that the default and default judgment are void because Plaintiff failed to serve Defendants with a statement of damages prior to the entry of default. (Mot., p. 13:5-12.)

Under Code of Civil Procedure section 473, subdivision (d), the Court may set aside any void judgment or order. A trial court has the inherent power to set aside a judgment void on its face at any time. (Connelly v. Castillo (1987) 190 Cal.App.3d 1583, 1588.) When considering the facial validity of ta judgment, the Court may only consider the contents of the judgment roll. (OC Interior Services, LLC v. Nationstar Mortgage, LLC (2017) 7 Cal.App.5th 1318, 1327 (holding that “[t]o prove that the judgment is void, the party challenging the judgment is limited to the judgment roll, i.e., no extrinsic evidence allowed.”).) If the judgment is not void on its face, the time limitations of Code of Civil Procedure section 473.5 apply. (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180-81; Schekel v. Resnik (1994) 27 Cal.App.4th Supp. 1, 3-4 (“[t]he Rogers court held that the time limitation set forth in Code of Civil Procedure section 473.5 applies by analogy to motions for relief from default judgment valid on its face but otherwise void for improper service” [citing Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1124.]).

Code of Civil Procedure section 425.11 requires that a plaintiff serve a statement of damages before a default may be taken in personal injury or wrongful death actions. However, this is not a personal injury action. Plaintiff’s complaint sought $12,359.92 paid to its insured for damages to Plaintiff’s insured’s vehicle. (Compl., ¶ 5.) The Statement of Damages filed on January 23, 2020 also demonstrates that Plaintiff only sought property damages of $12,359.92. (1/23/20 Statement of Damages, ¶ 2, (e).) Thus, the default and default judgment are not void on this basis.

The Court notes the Motion mentions in passing that Defendants were not personally served with the Summons and Complaint. (Mot., p. 5:7-10, Gibson Decl., ¶ 6.) On November 26, 2019, Plaintiff filed proofs of service purporting to show Defendants were personally served with the Summons and Complaint by Michal Kraut, a registered process server, on October 6, 2019 at 9085 Nagle Ave., Arleta, CA 91331 at 10:13 a.m. (11/26/19 Proofs of Service.) Defendants and Infinity state that service never occurred because Defendants were out of the country on October 6, 2019. (Mot., p. 5:7-10, Gibson Decl., ¶ 6.)

“A summons is the process by which a court acquires personal jurisdiction over a defendant in a civil action. The form of a summons is prescribed by law, and this form must be substantially observed. [Citation.] Service of a substantially defective summons does not confer jurisdiction over a party [citation] and will not support a default judgment. [Citation.]” (MJS Enterprises, Inc. v. Superior Court (1984) 153 Cal.App.3d 555, 557.) “Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.’ [Citation.]” (Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 858, emphasis added.)

If Defendants were not properly served, then the default and default judgment are void and must be set aside. However, Defendants did not submit any evidence in support of this argument. Thus, Defendants are ordered to submit supplemental papers and evidence regarding the dates Defendants were out of the country so that the Court may determine whether they were properly served.

1. Conclusion & Order

For the foregoing reasons, Defendants Jose Ortega and Soledad Ortega’s Motion for Order of Relief Setting Aside Default Judgment is CONTINUED TO APRIL 27, 2021 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defendants must submit supplemental papers regarding the purported service of the Summons and Complaint as requested herein. Failure to do so may result in the Motion being placed off calendar or denied.

Moving party is ordered to give notice.

Case Number: 18STLC13884    Hearing Date: August 18, 2020    Dept: 25

HEARING DATE: Tue., August 18, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Randall v. Duff COMPL. FILED: 11-08-18

CASE NUMBER: 18STLC13884 DEFAULT: 04-22-19

PROCEEDINGS: MOTION FOR (1) ORDER CHARGING THE INTEREST OF JUDGMENT DEBTOR SEAN DUFF; AND (2) ADDING NIGHT MOVES, LLC AS A JUDGMENT DEBTOR

MOVING PARTY: Judgment Creditor Jordan Randall

RESP. PARTY: None

MOTION FOR CHARGING ORDER

(CCP § 708.310)

MOTION TO AMEND JUDGMENT

(CCP § 187)

TENTATIVE RULING:

Judgment Creditor Jordan Randall’s Motion for (1) Order Charging the Interest of Judgment Debtor Sean Duff and (2) Adding Night Moves, LLC as a Judgment Debtor is CONTINUED TO OCTOBER 26, 2020 at 11:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Judgment Creditor must file and serve supplemental papers addressing the deficiencies noted herein. Judgment Debtor must also pay one additional filing fee. Failure to do so may result in the Motion being placed off calendar.

SERVICE:

[ ] Proof of Service Timely Filed (CRC, rule 3.1300) NO

[ ] Correct Address (CCP §§ 1013, 1013a) NO

[ ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) NO

OPPOSITION: None filed as of August 14, 2020 [ ] Late [X] None

REPLY: None filed as of August 14, 2020 [ ] Late [X] None

ANALYSIS:

1. Background & Discussion

On November 8, 2018, Judgment Creditor Jordan Randall (“Judgment Creditor”) filed an action for breach of contract, common counts, fraud, and negligent misrepresentation against Judgment Debtor Sean Duff (“Judgment Debtor”). On April 22, 2019, default was entered against Defendant, and on June 6, 2019, the Court entered a default judgment in the amount of $21,450.00. (6/6/19 Judgment.)

On November 22, 2019, Plaintiff filed the instant Motion for (1) Order Charging the Interest of Judgment Debtor Sean Duff and (2) Adding Night Loves, LLC as a Judgment Debtor (the “Motion”). To date, no opposition has been filed.

A. Service of the Moving Papers

As an initial matter, the Court notes that Judgment Creditor has not demonstrated Judgment Debtor was properly served with this Motion. Specifically, the Proof of Service states that only the “Notice of Motion” was served. (Mot., Proof of Service.) Code of Civil Procedure section 1013a requires that the proof of service “set forth the exact title of the document served and filed in the cause.” (Code Civ. Proc., § 1013a, subds. (1)-(3).) Thus, the Court cannot find Judgment Debtor was properly served with all moving and supporting papers.

B. Filing Fees

Judgment Creditor also seeks two different court orders, but has only paid one filing fee. Judgment Creditor’s request for relief filed as one motion negatively impacts the Court’s calendar by placing more motions on calendar than slots have been provided by the online reservation system. In addition, combining motions allows the moving party to avoid paying the requisite filing fees. Statutorily required filing fees are jurisdictional and “it is mandatory for the court clerks to demand and receive statutorily required filing fees.” (See Duran v. St. Luke’s Hospital (2003) 114 Cal.App.4th 457, 460.)

Accordingly, Judgment Creditor is ordered to pay one additional filing fee.

1. Conclusion & Order

For the foregoing reasons, Judgment Creditor Jordan Randall’s Motion for (1) Order Charging the Interest of Judgment Debtor Sean Duff and (2) Adding Night Moves, LLC as a Judgment Debtor is CONTINUED TO OCTOBER 26, 2020 at 11:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Judgment Creditor must file and serve supplemental papers addressing the deficiencies noted herein. Judgment Debtor must also pay one additional filing fee. Failure to do so may result in the Motion being placed off calendar.

Moving party is ordered to give notice.