This case was last updated from Los Angeles County Superior Courts on 08/20/2019 at 11:45:58 (UTC).

MANUEL ORTIZ-MARQUEZ VS DANIEL HERNANDEZ

Case Summary

On 10/06/2017 MANUEL ORTIZ-MARQUEZ filed a Personal Injury - Motor Vehicle lawsuit against DANIEL HERNANDEZ. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is ELAINE LU. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******2741

  • Filing Date:

    10/06/2017

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Personal Injury - Motor Vehicle

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

ELAINE LU

 

Party Details

Plaintiff

ORTIZ-MARQUEZ MANUEL

Defendant

HERNANDEZ DANIEL

Attorney/Law Firm Details

Plaintiff Attorneys

GOLDSTEIN JEFFREY BRIAN

KASHRI RONNIE

 

Court Documents

Substitution of Attorney

2/28/2018: Substitution of Attorney

Substitution of Attorney

5/29/2018: Substitution of Attorney

Request for Entry of Default / Judgment

7/18/2018: Request for Entry of Default / Judgment

Proof of Service by Substituted Service

7/18/2018: Proof of Service by Substituted Service

Notice of Rejection Default/Clerk's Judgment

8/3/2018: Notice of Rejection Default/Clerk's Judgment

Statement of Damages (Personal Injury or Wrongful Death)

8/21/2018: Statement of Damages (Personal Injury or Wrongful Death)

Proof of Service (not Summons and Complaint)

8/23/2018: Proof of Service (not Summons and Complaint)

Request for Entry of Default / Judgment

8/23/2018: Request for Entry of Default / Judgment

Request for Dismissal - Request for Dismissal

3/6/2019: Request for Dismissal - Request for Dismissal

Memorandum (name extension) - Memorandum interest

3/6/2019: Memorandum (name extension) - Memorandum interest

Default Judgment - Declaration

3/6/2019: Default Judgment - Declaration

Statement of the Case - Statement of the Case

3/6/2019: Statement of the Case - Statement of the Case

Default Judgment - Declaration

3/6/2019: Default Judgment - Declaration

Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

3/6/2019: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

Judgment - Judgment - Default Judgment By Court - Before Trial - 05/15/2019 entered for Plaintiff Manuel Ortiz-Marquez against Defendant Daniel Hernandez.

3/15/2019: Judgment - Judgment - Default Judgment By Court - Before Trial - 05/15/2019 entered for Plaintiff Manuel Ortiz-Marquez against Defendant Daniel Hernandez.

Minute Order - Minute Order (Non-Jury Trial)

4/5/2019: Minute Order - Minute Order (Non-Jury Trial)

Notice of Case Assignment - Limited Civil Case

10/6/2017: Notice of Case Assignment - Limited Civil Case

5 More Documents Available

 

Docket Entries

  • 05/21/2019
  • DocketOrder to Show Cause Re: Entry of Default Judgment/Dismissal scheduled for 08/07/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 94 Not Held - Vacated by Court on 05/21/2019

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  • 05/21/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 10/09/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94 Not Held - Vacated by Court on 05/21/2019

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  • 05/15/2019
  • DocketJudgment - Default Judgment By Court - Before Trial - 05/15/2019 entered for Plaintiff Manuel Ortiz-Marquez against Defendant Daniel Hernandez. Filed by: Clerk

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  • 05/15/2019
  • DocketDefault judgment by Court entered for Plaintiff Manuel Ortiz-Marquez against Defendant Daniel Hernandez on the Complaint filed by Manuel Ortiz-Marquez on 10/06/2017 for damages of $18,143.00, interest of $6,737.09, and costs of $480.00 for a total of $25,360.09.

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  • 04/05/2019
  • DocketOrder to Show Cause Re: Entry of Default Judgment/Dismissal scheduled for 08/07/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 04/05/2019
  • DocketMinute Order (Non-Jury Trial)

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  • 04/05/2019
  • DocketNon-Jury Trial scheduled for 04/05/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 94 updated: Result Date to 04/05/2019; Result Type to Held

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  • 03/15/2019
  • DocketUpdated -- Judgment - Default Judgment By Court - Before Trial - 05/15/2019 entered for Plaintiff Manuel Ortiz-Marquez against Defendant Daniel Hernandez.: Status Date changed from 05/15/2019 to 03/15/2019; As To Parties: removed

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  • 03/06/2019
  • DocketDeclaration; Filed by: Manuel Ortiz-Marquez (Plaintiff); As to: Daniel Hernandez (Defendant)

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  • 03/06/2019
  • DocketDeclaration; Filed by: Manuel Ortiz-Marquez (Plaintiff); As to: Daniel Hernandez (Defendant)

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14 More Docket Entries
  • 05/29/2018
  • DocketSubstitution of Attorney; Filed by: Ronnie Kashri (Attorney); As to: Manuel Ortiz-Marquez (Plaintiff)

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  • 02/28/2018
  • DocketSubstitution of Attorney; Filed by: Attorney

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  • 02/20/2018
  • DocketCase reassigned to Stanley Mosk Courthouse in Department 77

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  • 10/06/2017
  • DocketComplaint; Filed by: Manuel Ortiz-Marquez (Plaintiff); As to: Daniel Hernandez (Defendant)

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  • 10/06/2017
  • DocketCivil Case Cover Sheet; Filed by: Manuel Ortiz-Marquez (Plaintiff)

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  • 10/06/2017
  • DocketSummons on Complaint; Issued and Filed by: Clerk

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  • 10/06/2017
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 10/06/2017
  • DocketCase assigned to Hon. Elaine Lu in Department 77 Stanley Mosk Courthouse

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  • 10/06/2017
  • DocketNon-Jury Trial scheduled for 04/05/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 77

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  • 10/06/2017
  • DocketOSC - Failure to File Proof of Service scheduled for 10/09/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 77

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Tentative Rulings

Case Number: 17STLC02741    Hearing Date: December 16, 2020    Dept: 26

Ortiz-Marquez v. Hernandez, et al.

[RENEWED] MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT

(CCP § 473(d); equitable grounds)

TENTATIVE RULING:

Defendant Daniel Hernandez’s Renewed Motion to Vacate Default and Default Judgment is DENIED.

ANALYSIS:

Plaintiff Manuel Ortiz-Marquez (“Plaintiff”) filed the instant action for motor vehicle negligence against Defendant Daniel Hernandez (“Defendant”) on October 6, 2017. Following Defendant’s failure to file a responsive pleading, the court entered his default on August 23, 2018 and default judgment on May 15, 2019. Defendant filed a Motion to Vacate Default and Default Judgment on October 31, 2019 (“the first Motion”). On January 9, 2020, the Court denied the first Motion but provided for the possibility of a re-filed motion to vacate.

On March 9, 2020, Defendant filed the instant Renewed Motion to Vacate Default and Default Judgment (“the Renewed Motion”). Plaintiff filed an opposition on April 8, 2020 and Defendant replied on April 16, 2020.

The instant Renewed Motion came for hearing on July 1, 2020 and was denied. (Minute Order, 7/1/20.) On August 7, 2020, Defendant filed a Motion for Reconsideration the July 1, 2020 order, which came for hearing on November 9, 2020.

On November 9, 2020, the Court heard oral argument and reset the Renewed Motion to Vacate for hearing on December 16, 2020. (Minute Order, 11/9/20.) The Court instructed that no further briefing was to be filed. (Ibid.)

Discussion

In the Renewed Motion to Vacate Default and Default Judgment, Defendant moves for relief again pursuant to Code of Civil Procedure section 473, subdivision (d) and on equitable grounds. The Court will address each of these grounds in turn.

Code of Civil Procedure section 473, subdivision (d)

The First Motion to Vacate was brought pursuant to Code of Civil Procedure section 473, subdivision (d) and section 473.5. The Renewed Motion again raises 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), Defendant’s Renewed Motion for relief under this statute is timely.

As the Court explained in its ruling on the First Motion to Vacate, Defendant must demonstrate that there was a complete failure of service of the Summons and Complaint. The proof of substitute service filed on July 18, 2018 is attested to by a registered process server, and therefore, entitled to a presumption of truth of the facts stated therein. (Cal. Evid. Code, § 457.) The proof of service states that following multiple attempts at personal service, the Summons and Complaint were left at 16149 Shadybend Drive, Hacienda Heights, California on June 2, 2018 at 9:30 am with occupant David Johnson. (Proof of Service, filed 7/18/18, ¶¶3-5.) The papers were thereafter mailed to the Shadybend address on the same date. (Id. at p. 3.)

In both of Defendant’s declarations in support of the First and Renewed Motions to Vacate, Defendant admits to living at the service address, but disavows knowledge of anyone by the name of David Johnson. (Motion, Hernandez Decl., ¶¶4-5.) He also contends that he never received the Summons and Complaint in the mail, nor were they ever left at his house. (Id. at ¶5.) As before, Defendant’s second declaration is insufficient to overcome the presumption of service as stated in the proof of service. Defendant still offers no details or facts that would allow the Court to find his statements credible.

In ruling on the First Motion to Vacate, the Court provided examples of details that would help establish the credibility of Defendant’s statements in order to overcome the presumption of proper substitute service. These details included: (1) whether other persons lived at the service address and who they might be; (2) Defendant’s whereabouts at the date and time of service; and (3) information regarding delivery and receipt of mail at the service address that would explain why Defendant did not get the copy of the papers mailed to his house. Defendant’s declaration in support of the Renewed Motion to Vacate provides only one additional detail, namely, that he is rarely at home during the day and was not at the residence when service was attempted on May 31, 2018 or June 1, 2018. (Renewed Motion, Hernandez Decl., ¶4.) Not only does this fail to speak to Defendant’s whereabouts on the date the papers were purportedly left at his residence (June 2, 2018) it also corroborates the process server’s declaration of diligence.

Regarding the other additional details suggested by the Court, Defendant again simply reiterates that he does not know anyone named David Johnson or that he received the papers in the mail. (Id. at ¶¶4-5.) Defendant again does not offer any information about (1) whether other people lived at the service address and who they might be; and (2) delivery and receipt of mail at the service address that would explain why Defendant did not get the copy of the papers mailed to his house.

As previously explained, it is in the Court’s discretion to make factual determinations based on the evidence presented. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 479.) Here, Defendant’s evidence remains too vague, conculory and generic to overcome the presumption of service. He has not shown that the papers could not have been left with someone who was present at the residence on June 2, 2018, or that they were not mailed to the residence on the same date. Therefore, the Court finds that Defendant has not shown a failure of service of process and finds that relief under Civil Code section 473, subdivision (d) is not proper.

Equitable Relief

Equitable relief from a default judgment can be sought at any time on the ground of extrinsic mistake. (Olivera v. Grace (1942) 19 Cal.2d 570, 576; Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1300.)

There are three essential requirements to obtain relief on this ground: (1) a meritorious defense; (2) a satisfactory excuse for not presenting a defense to the original action; and (3) diligence in seeking to set aside the default/default judgment once it was discovered. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 982.) Once the purported extrinsic fraud or mistake is discovered, a party is expected to proceed diligently to seek relief. (Ibid.) There is a strong public policy in favor of the finality of judgments and only in exceptional cases should relief be granted. (Id., at p. 982.)

In ruling on the First Motion to Vacate, the Court expressly found that Defendant had failed to demonstrate the reasonableness of the time in which the request for relief from default and default judgment was sought. Specifically, no information was provided as to how Defendant or his attorney learned of the judgment in this action and the Court could not evalute the reasonableness of the timing of the Motion without understanding how Defendant or defense counsel learned of this action.

The Renewed Motion to Vacate Default and Default Judgment suffers from the same lack of information. Defendant again claims to have learned of the action from his attorney in October 2019. Defense counsel’s declaration again simply leaps from the entry of default judgment on March 6, 2019 to the opening of a case file in her office on August 26, 2019. (Renewed Motion, Monty Decl., ¶¶4-5; First Motion, Monty Decl., ¶¶4-5.) The crucial information of how defense counsel (or her office) learned about the action and when, remains missing. Furthermore, the First Motion to Vacate was not filed until October 31, 2019, which was more than two months after defense counsel’s office opened a case file. This delay in action remains unexplained. Finally, the request for equitable relief in the Renewed Motion, having been filed almost a year after entry of default judgment, is even more dilatory given that equitable relief was not raised in the First Motion.

Without showing that Defendant or his representative acted diligently despite knowing of this action since August 2019, the Court finds equitable relief is not appropriate.

Conclusion

Defendant Daniel Hernandez’s Motion to Vacate Default and Default Judgment is DENIED.

Plaintiff to give notice.

Case Number: 17STLC02741    Hearing Date: November 09, 2020    Dept: 26

Ortiz-Marquez v. Hernandez, et al.

MOTION FOR RECONSIDERATION(CCP § 1008)

TENTATIVE RULING:

Defendant Daniel Hernandez’s Motion for Reconsideration is DENIED.

ANALYSIS:

Plaintiff Manuel Ortiz-Marquez (“Plaintiff”) filed the instant action for motor vehicle negligence against Defendant Daniel Hernandez (“Defendant”) on October 6, 2017. Following Defendant’s failure to file a responsive pleading, the court entered his default on August 23, 2018 and his default judgment on May 15, 2019. Defendant filed a Motion to Vacate Default and Default Judgment on October 31, 2019 (“the first Motion”). On January 9, 2020, the Court denied the first Motion but provided for the possibility of a re-filed motion to vacate.

On March 9, 2020, Defendant filed a Renewed Motion to Vacate Default and Default Judgment (“the renewed Motion”). At the hearing on July 1, 2020, the Court denied the renewed Motion to Vacate Default and Default Judgment. (Minute Order, 7/1/20.) On August 7, 2020, Defendant filed the instant Motion for Reconsideration of the Court’s July 1, 2020 order. Plaintiff filed an opposition on October 27, 2020 and Defendant replied on November 2, 2020.

Discussion

The Motion for Reconsideration is brought under Code of Civil Procedure sections 1008 and 128 and the California Constitution.

A motion for reconsideration under Code of Civil Procedure section 1008 cannot be brought with respect to post-judgment orders. (APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4th 176, 182 [“Once the trial court has entered judgment, it is without power to grant reconsideration.”].) Therefore, the request for relief from the July 1, 2020 order under Code of Civil Procedure section 1008 is denied. Nor has shown that the Court’s constitutional authority to reconsider its own orders sua sponte, which is not bounded by Code of Civil Procedure section 1008, can be applied post-judgment matters.

A motion for relief under Code of Civil Procedure section 128, subdivision (a)(8), is the power “to amend and control its process and orders so as to make them conform to law and justice.” (Code Civ. Proc., § 128, subd. (a)(8).) This power, however, “is limited to such exercise as the correction of clerical errors. (Baske v. Burke (1981) 125 Cal.App.3d 38, 44 [citing Drinkhouse v. Van Ness (1927) 202 Cal. 359, 370; Bloniarz v. Roloson (1969) 70 Cal.2d 143, 148].) Therefore, the request for relief from the July 1, 2020 order under Code of Civil Procedure section 128 is also denied.

Finally, even if relief was permitted under the above grounds, the Court declines to exercise its discretion to grant such relief. Defendant had two prior opportunities to demonstrate the default and default judgment should be vacated but failed to carry the burden of proof.

Conclusion

Defendant Daniel Hernandez’s Motion for Reconsideration is DENIED.

Plaintiff to give notice.

Case Number: 17STLC02741    Hearing Date: July 01, 2020    Dept: 26

Ortiz-Marquez v. Hernandez, et al.

MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT

(CCP § 473(d); equitable grounds)

TENTATIVE RULING:

Defendant Daniel Hernandez’s Motion to Vacate Default and Default Judgment is DENIED.

ANALYSIS:

Plaintiff Manuel Ortiz-Marquez (“Plaintiff”) filed the instant action for motor vehicle negligence against Defendant Daniel Hernandez (“Defendant”) on October 6, 2017. Following Defendant’s failure to file a responsive pleading, the court entered his default on August 23, 2018 and his default judgment on May 15, 2019. Defendant filed a Motion to Vacate Default and Default Judgment on October 31, 2019 (“the first Motion”). On January 9, 2020, the Court denied the first Motion but provided for the possibility of a re-filed motion to vacate.

On March 9, 2020, Defendant filed the instant Renewed Motion to Vacate Default and Default Judgment. Plaintiff filed an opposition on April 8, 2020 and Defendant replied on April 16, 2020.

The Court notes that in conjunction with the Renewed Motion, Defendant filed an Answer on March 9, 2020, which is an unauthorized pleading not filed in conformity with the law. (Code Civ. Proc., § 436, subd. (b).) As Defendant’s default and default judgment have been entered, the filing of the Answer prior to vacating the default and default judgment is improper. As such, the Court on its own motion, strikes the Answer filed on March 9, 2020.

Discussion

In the Renewed Motion to Vacate Default and Default Judgment, Defendant moves for relief again pursuant to Code of Civil Procedure section 473, subdivision (d) and on equitable grounds. The Court will address each of these grounds in turn.

Code of Civil Procedure section 473, subdivision (d)

The First Motion to Vacate was brought pursuant to Code of Civil Procedure section 473, subdivision (d) and section 473.5. The Renewed Motion again raises 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), Defendant’s Renewed Motion for relief under this statute is timely.

As the Court explained in its ruling on the First Motion to Vacate, Defendant must demonstrate that there was a complete failure of service of the Summons and Complaint. The proof of substitute service filed on July 18, 2018 is attested to by a registered process server, and therefore, entitled to a presumption of truth of the facts stated therein. (Cal. Evid. Code, § 457.) The proof of service states that following multiple attempts at personal service, the Summons and Complaint were left at 16149 Shadybend Drive, Hacienda Heights, California on June 2, 2018 at 9:30 am with occupant David Johnson. (Proof of Service, filed 7/18/18, ¶¶3-5.) The papers were thereafter mailed to the Shadybend address on the same date. (Id. at p. 3.)

In both of Defendant’s declarations in support of the First and Renewed Motions to Vacate, Defendant admits to living at the service address, but disavows knowledge of anyone by the name of David Johnson. (Motion, Hernandez Decl., ¶¶4-5.) He also contends that he never received the Summons and Complaint in the mail, nor were they ever left at his house. (Id. at ¶5.) As before, Defendant’s second declaration is insufficient to overcome the presumption of service as stated in the proof of service. Defendant still offers no details or facts that would allow the Court to find his statements credible.

In ruling on the First Motion to Vacate, the Court provided examples of details that would help establish the credibility of Defendant’s statements in order to overcome the presumption of proper substitute service. These details included: (1) whether other persons lived at the service address and who they might be; (2) Defendant’s whereabouts at the date and time of service; and (3) information regarding delivery and receipt of mail at the service address that would explain why Defendant did not get the copy of the papers mailed to his house. Defendant’s declaration in support of the Renewed Motion to Vacate provides only one additional detail, namely, that he is rarely at home during the day and was not at the residence when service was attempted on May 31, 2018 or June 1, 2018. (Renewed Motion, Hernandez Decl., ¶4.) Not only does this fail to speak to Defendant’s whereabouts on the date the papers were purportedly left at his residence (June 2, 2018) it also corroborates the process server’s declaration of diligence.

Regarding the other additional details suggested by the Court, Defendant again simply reiterates that he does not know anyone named David Johnson or that he received the papers in the mail. (Id. at ¶¶4-5.) Defendant again does not offer any information about (1) whether other people lived at the service address and who they might be; and (2) delivery and receipt of mail at the service address that would explain why Defendant did not get the copy of the papers mailed to his house.

As previously explained, it is in the Court’s discretion to make factual determinations based on the evidence presented. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 479.) Here, Defendant’s evidence remains too vague, conculory and generic to overcome the presumption of service. He has not shown that the papers could not have been left with someone who was present at the residence on June 2, 2018, or that they were not mailed to the residence on the same date. Therefore, the Court finds that Defendant has not shown a failure of service of process and relief under Civil Code section 473, subdivision (d) is not proper.

Equitable Relief

Equitable relief from a default judgment can be sought at any time on the ground of extrinsic mistake. (Olivera v. Grace (1942) 19 Cal.2d 570, 576; Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1300.)

There are three essential requirements to obtain relief on this ground: (1) a meritorious defense; (2) a satisfactory excuse for not presenting a defense to the original action; and (3) diligence in seeking to set aside the default/default judgment once it was discovered. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 982.) Once the purported extrinsic fraud or mistake is discovered, a party is expected to proceed diligently to seek relief. (Ibid.) There is a strong public policy in favor of the finality of judgments and only in exceptional cases should relief be granted. (Id., at p. 982.)

In ruling on the First Motion to Vacate, the Court expressly found that Defendant had failed to demonstrate the reasonableness of the time in which the request for relief from default and default judgment was sought. Specifically, no information was provided as to how Defendant or his attorney learned of the judgment in this action and the Court could not evalute the reasonableness of the timing of the Motion without understanding how Defendant or defense counsel learned of this action.

The Renewed Motion to Vacate Default and Default Judgment suffers from the same lack of information. Defendant again claims to have learned of the action from his attorney in October 2019. Defense counsel again simply leaps from the entry of default judgment on March 6, 2019 to the opening of a case file in her office on August 26, 2019. (Renewed Motion, Monty Decl., ¶¶4-5; First Motion, Monty Decl., ¶¶4-5.) The crucial information of how defense counsel (or her office) learned about the action and when, remains missing. Furthermore, the First Motion to Vacate was not filed until October 31, 2019, which was more than four months after defense counsel’s office opened a case file. This delay in action remains unexplained. The request for equitable relief in the Renewed Motion, having been filed almost a year after entry of default judgment, is even more dilatory given that equitable relief was not raised in the First Motion.

Without showing that Defendant or his representative acted diligently despite knowing of this action since August 2019, the Court finds equitable relief is not appropriate.

Conclusion

Defendant Daniel Hernandez’s Motion to Vacate Default and Default Judgment is DENIED.

Plaintiff to give notice.

Case Number: 17STLC02741    Hearing Date: January 09, 2020    Dept: 94

MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT

(CCP §§ 473(d), 473.5)

TENTATIVE RULING:

Defendant Daniel Hernandez’s Motion to Vacate Default and Default Judgment is DENIED.

SUMMARY OF COMPLAINT: Action for motor vehicle negligence.

RELIEF REQUESTED: Vacate default and default judgment against Defendant on the grounds that he was not served with process and did not receive actual notice of this action.

OPPOSITION: Defendant was twice served the Summons and Complaint by substitute service, and served other papers by mail numerous times. Defendant has not established that service did not result in actual notice in time to defend this action.

REPLY: Defendant’s declaration establishes that he never received a copy of the Summons and Complaint, does not know the person to who the papers were purportedly handed, and was not aware of this action until October 2019.

ANALYSIS:

Plaintiff Manuel Ortiz-Marquez (“Plaintiff”) filed the instant action for motor vehicle negligence against Defendant Daniel Hernandez (“Defendant”) on October 6, 2017. Following Defendant’s failure to file a responsive pleading, the court entered his default on August 23, 2018 and his default judgment on May 15, 2019. Defendant filed the instant Motion to Vacate Default and Default Judgment on October 31, 2019. Plaintiff filed an opposition on December 26, 2019, and Defendant replied on January 2, 2020.

Discussion

CCP § 473(d)

The Motion is first 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), Defendant’s Motion for relief under this statute is timely.

Defendant must now demosntrate that he was not served with the Summons and Complaint, or that his lack of actual notice was not due to avoidance of service or inexcuable neglect. The proof of substitute service filed on July 18, 2018 is attested to by a registered process server, and therefore, entitled to a presumption of validity. (Cal. Evid. Code, § 457.) It states that following multiple attempts at personal service, the Summons and Complaint were left at 16149 Shadybend Drive, Hacienda Heights, California on June 2, 2018 at 9:30 am with occupant David Johnson. (Proof of Service, filed 7/18/18, ¶¶3-5.) The papers were thereafter mailed to the service address on the same date. (Id. at p. 3.)

In his moving declaration, Defendant admits to living at the service address, but disavows knowledge of anyone by the name of David Johnson. (Motion, Hernandez Decl., ¶¶4-5.) He also contends that he never received the Summons and Complaint in the mail, nor were they ever left at his house. (Id. at ¶5.) Defendant’s evidence is insufficient to overcome the presumption of service as stated in the proof of service. Defendant offers no details or facts that would allow the Court to find his statements credible. For example, no information is provided regarding whether other persons lived at the service address and who they might be. No information is provided regarding Defendant’s whereabouts at the date and time of service. Nor is any information provided regarding delivery and receipt of mail at the service address that would explain why Defendant did not get the copy of the papers mailed to his house. It is in the Court’s discretion to make factual determinations based on the evidence presented. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 479.) Here, Defendant’s evidence is too vague, conculory and generic to overcome the presumption of service. The Court finds that Defendant has not shown a failure of service of process and therefore, relief under Civil Code section 473, subdivision (d) is not proper.

CCP § 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).) As there is no indication in the Court’s records that written notice of the judgment was served on Defendant, the outer deadline for a motion under Code of Civil Procedure section 473.5 is two years after entry of default judgment.

However, there is also reasonabless requirement in bringing a motion under this staute. Defendant has not shown the timing of the Motion is reasonable. No information is provided as to how Defendant or his attorney learned of the judgment in this action. Both supporting declarations gloss over this issue by merely stating that defense counsel opened a case file in this matter on August 26, 2019 and the Defendant was not informed of this action until October 14, 2019. (Motion, Monty Decl., ¶5; Hernandez Decl., ¶6.) Without an understanding of how Defendant or defense counsel learned of this action, the Court cannot evulate the reasonableness of the timing of the Motion. Also, as discussed above, Defendant does not provide any informaiton that would the Court to determine his lack of actual notice was not caused by his own avoidance of service or inexcusable neglect. This must be demonstrated for relief under Code of Civil Procedure section 473.5, and therfore, relief under this statute is also not proper.

Conclusion

Defendant Daniel Hernandez’s Motion to Vacate Default and Default Judgment is DENIED.

Court clerk to give notice.

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