This case was last updated from Los Angeles County Superior Courts on 07/16/2020 at 02:11:27 (UTC).

MIDWAY RENT A CAR, INC., A CALIFORNIA CORPORATION VS NICHOLAS JOHN FIASCHETTI

Case Summary

On 11/16/2018 MIDWAY RENT A CAR, INC , A CALIFORNIA CORPORATION filed a Contract - Other Contract lawsuit against NICHOLAS JOHN FIASCHETTI. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JON R. TAKASUGI. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******3975

  • Filing Date:

    11/16/2018

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

JON R. TAKASUGI

 

Party Details

Plaintiff

MIDWAY RENT A CAR INC. A CALIFORNIA CORPORATION DBA MIDWAY CAR RENTAL DBA M CAR

Defendant

FIASCHETTI NICHOLAS JOHN

Attorney/Law Firm Details

Plaintiff Attorney

SCOTT RICHARD

 

Court Documents

Minute Order - Minute Order (Hearing on Motion to Set Aside/Vacate Judgment (CCP 473))

7/14/2020: Minute Order - Minute Order (Hearing on Motion to Set Aside/Vacate Judgment (CCP 473))

Notice of Ruling - Notice of Ruling

7/15/2020: Notice of Ruling - Notice of Ruling

Supplemental Declaration (name extension) - Supplemental Declaration Opposition to Mot. to Set Aside Judgment

2/13/2020: Supplemental Declaration (name extension) - Supplemental Declaration Opposition to Mot. to Set Aside Judgment

Minute Order - Minute Order (Hearing on Motion to Set Aside/Vacate Judgment (CCP 473))

1/16/2020: Minute Order - Minute Order (Hearing on Motion to Set Aside/Vacate Judgment (CCP 473))

Opposition (name extension) - Opposition Opposition to Motion to Vacate Default Judgment

12/20/2019: Opposition (name extension) - Opposition Opposition to Motion to Vacate Default Judgment

Answer - Answer

11/12/2019: Answer - Answer

Order on Court Fee Waiver (Superior Court) - Order on Court Fee Waiver (Superior Court) Granted

11/13/2019: Order on Court Fee Waiver (Superior Court) - Order on Court Fee Waiver (Superior Court) Granted

Abstract of Judgment - Civil and Small Claims - Abstract of Judgment - Civil and Small Claims

9/30/2019: Abstract of Judgment - Civil and Small Claims - Abstract of Judgment - Civil and Small Claims

Application and Order for Appearance and Examination - Application and Order for Appearance and Examination

10/3/2019: Application and Order for Appearance and Examination - Application and Order for Appearance and Examination

Notice (name extension) - Notice Notice of Entry of Judgment/POS

8/20/2019: Notice (name extension) - Notice Notice of Entry of Judgment/POS

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

6/18/2019: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

Judgment - Judgment by Default by Court

7/25/2019: Judgment - Judgment by Default by Court

Proof of Mailing (Substituted Service) - Proof of Mailing (Substituted Service)

5/22/2019: Proof of Mailing (Substituted Service) - Proof of Mailing (Substituted Service)

Proof of Service by Substituted Service - Proof of Service by Substituted Service

3/28/2019: Proof of Service by Substituted Service - Proof of Service by Substituted Service

Complaint - Complaint

11/16/2018: Complaint - Complaint

Summons - Summons on Complaint

11/16/2018: Summons - Summons on Complaint

Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

11/16/2018: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

First Amended Standing Order - First Amended Standing Order

11/16/2018: First Amended Standing Order - First Amended Standing Order

18 More Documents Available

 

Docket Entries

  • 07/15/2020
  • DocketNotice of Ruling; Filed by: Midway Rent a Car, Inc., a California Corporation (Plaintiff)

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  • 07/14/2020
  • DocketMinute Order (Hearing on Motion to Set Aside/Vacate Judgment (CCP 473))

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  • 07/14/2020
  • DocketHearing on Motion to Set Aside/Vacate Judgment (CCP 473) scheduled for 07/14/2020 at 09:00 AM in Spring Street Courthouse at Department 25 updated: Result Date to 07/14/2020; Result Type to Held

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  • 05/04/2020
  • DocketNotice of Cont. Motion to Set Aside Default Jmt; Filed by: Midway Rent a Car, Inc., a California Corporation (Plaintiff); As to: Nicholas John Fiaschetti (Defendant)

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  • 04/17/2020
  • DocketNotice Re: Continuance of Hearing and Order; Filed by: Clerk

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  • 04/17/2020
  • DocketReset - Court Unavailable, Hearing on Motion to Set Aside/Vacate Judgment (CCP 473) scheduled for 05/04/2020 at 10:30 AM in Spring Street Courthouse at Department 25 Not Held - Advanced and Continued - by Court was rescheduled to 07/14/2020 09:00 AM

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  • 03/23/2020
  • DocketNotice of Cont. Motion to Set Aside Default/Judgment; Filed by: Midway Rent a Car, Inc., a California Corporation (Plaintiff); As to: Nicholas John Fiaschetti (Defendant)

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  • 03/13/2020
  • DocketNotice Re: Continuance of Hearing and Order; Filed by: Clerk

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  • 03/13/2020
  • DocketThere being no judge available this date, Hearing on Motion to Set Aside/Vacate Judgment (CCP 473) scheduled for 03/19/2020 at 10:30 AM in Spring Street Courthouse at Department 25 Not Held - Advanced and Continued - by Court was rescheduled to 05/04/2020 10:30 AM

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  • 02/13/2020
  • DocketNotice of Case Reassignment; Filed by: Midway Rent a Car, Inc., a California Corporation (Plaintiff); As to: Nicholas John Fiaschetti (Defendant)

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30 More Docket Entries
  • 03/28/2019
  • DocketProof of Service by Substituted Service; Filed by: Midway Rent a Car, Inc., a California Corporation (Plaintiff); As to: Nicholas John Fiaschetti (Defendant); Proof of Mailing Date: 03/26/2019; Service Cost: 52.00; Service Cost Waived: No

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  • 02/04/2019
  • DocketCase reassigned to Stanley Mosk Courthouse in Department 94 - Hon. James E. Blancarte; Reason: Inventory Transfer

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  • 11/17/2018
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 11/19/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 11/17/2018
  • DocketNon-Jury Trial scheduled for 05/15/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 11/16/2018
  • DocketCase assigned to Hon. Jon R. Takasugi in Department 94 Stanley Mosk Courthouse

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  • 11/16/2018
  • DocketFirst Amended Standing Order; Filed by: Clerk

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  • 11/16/2018
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 11/16/2018
  • DocketSummons on Complaint; Issued and Filed by: Clerk

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  • 11/16/2018
  • DocketCivil Case Cover Sheet; Filed by: Midway Rent a Car, Inc., a California Corporation (Plaintiff)

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  • 11/16/2018
  • DocketComplaint; Filed by: Midway Rent a Car, Inc., a California Corporation (Plaintiff); As to: Nicholas John Fiaschetti (Defendant)

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Tentative Rulings

Case Number: 18STLC13975    Hearing Date: July 14, 2020    Dept: 25

MOTION TO SET ASIDE/VACATE DEFAULT & DEFAULT JUDGMENT

(CCP § 473(b))

TENTATIVE RULING:

Defendant Nicholas John Fiaschetti’s Motion to Set Aside Default and Default Judgment is PLACED OFF CALENDAR.

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 December 20, 2019 [ ] Late [ ] None

REPLY: None filed as of July 10, 2020 [ ] Late [X] None

ANALYSIS:

  1. Background & Discussion

On November 16, 2018, Plaintiff Midway Rent a Car, Inc. (“Plaintiff”) filed this action for breach of contract, common counts, and general negligence against Defendant Nicholas John Fiaschetti (“Defendant”). On June 5, 2019, default was entered against Defendant. On July 25, 2019, default judgment was entered in the amount of $4,593.00. (7/25/19 Judgment.)

On November 12, 2019, Defendant filed the instant Motion to Set Aside Default (the “Motion”) under Code of Civil Procedure section 473, subdivision (b). Plaintiff filed an Opposition on December 20, 2019. No reply brief was filed.

On January 16, 2020, the Court continued the hearing noting that, although the Motion was brought less than six months after entry of default, it must still have been brought within a reasonable time. (1/16/20 Minute Order.) In his original moving papers, Defendant simply stated that he discovered the action while performing a routine credit check, but offered no specific dates as to when the credit check was done. (Id.) Defendant was ordered to “provide a detailed explanation as to why he did not receive the documents purportedly served to his private mailbox.” (Id.)

The Court also expressed concern over Plaintiff’s proof of service because it did not contain a declaration of due diligence as required for substitute service under Code of Civil Procedure section 415.20, subdivision (b). (Id.) Plaintiff was ordered to file and serve supplemental briefing addressing the lack of a declaration of diligence. (Id.)

On February 13, 2020, Plaintiff filed a declaration from the process server explaining that service on Defendant was made at a private mailbox pursuant to Code of Civil Procedure section 415.20, subdivision (c). (2/13/20 Sanchez Decl., ¶ 3.) Code of Civil Procedure section 415.20, subdivision (c), provides that, “if the only address reasonably known for the person to be served is a private mailbox obtained through a commercial mail receiving agency service of process may be effected on the first delivery attempt by leaving a copy of the summons and complaint with the commercial mail receiving agency…” As no other address was known, the process server effectuated service at 9903 Santa Monica Blvd., #318, Beverly Hills, CA 90212, which is a private mailbox. (2/13/20 Sanchez Decl., ¶ 3.) Thus, the Court finds that Plaintiff has complied with the statutory requirements for service of process.

However, Defendant did not file and serve any supplemental papers as requested. Accordingly, Defendant’s Motion is PLACED OFF CALENDAR.

  1. Conclusion & Order

For the foregoing reasons, Defendant Nicholas John Fiaschetti’s Motion to Set Aside Default and Default Judgment is PLACED OFF CALENDAR.

Moving party is ordered to give notice.

Case Number: 18STLC13975    Hearing Date: January 16, 2020    Dept: 94

MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT

(CCP § 473(b))

TENTATIVE RULING:

Defendant Nicholas John Fiaschetti’s Motion to Set Aside Entry of Default and Default Judgment is CONTINUED TO MARCH 19, 2020 AT 10:30 AM IN DEPARTMENT 94.

SUMMARY OF COMPLAINT: Action for breach of motor vehicle lease agreement and related claims.

RELIEF REQUESTED: Vacate default and default judgment against Defendant on the grounds of he was not served with the Summons and Complaint.

OPPOSITION: Following substitute service of the Summons and Complaint, documents mailed to the service address were never returned as undeliverable.

REPLY: None filed as of January 13, 2020.

ANALYSIS:

Plaintiff Midway Rent A Car, Inc. (“Plaintiff”) filed the instant action for breach of a motor vehicle lease agreement and related claims against Defendant Nicholas John Fiaschetti (“Defendant”) on November 16, 2018. Following Defendant’s failure to file a responsive pleading, the court entered his default on June 5, 2019 and default judgment on July 25, 2019. Defendant filed the instant Motion to Vacate Default and Default Judgment on November 12, 2019. Defendant filed its opposition on

Vacate Default and Default Judgment

Defendant moves for relief under Code of Civil Procedure section 473, subdivision (b). Under this statute, an application for relief must be made within a reasonable time, no more than six months after entry of the order from which relief is sought, and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or excusable 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 contends that he was surprised by the default and default judgment because he was never served with the Summons and Complaint. (Motion, Fiaschetti Decl., ¶2.) Initially, Defendant has not shown that this Motion was brought “within a reasonable time” upon discovery of the default and/or default judgment. Although the Motion was filed less than six months after entry of default, it still must have been brought within a reasonable time. Defendant simply states that he discovered this action when performing a routine credit check, but offers no dates when the credit check was done. (Id. at ¶2.)

However, upon review of the proof of service filed by Plaintiff regarding substitute service of the Summons and Complaint on Defendant, the Court has concerns that the service fails to comply with the statutory requirements. Code of Civil Procedure section 415.20, subdivision (b) permits substitute service upon an individual following reasonable diligence to effectuate personal service. (Code Civ. Proc., § 415.20, subd. (b); (Board of Trustees of Leland Stanford Junior University v. Ham (2013) 216 Cal.App.4th 330, 337 (citing American Exp. Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389 (“Substituted service is permissible, however, ‘only after a good faith effort at personal service has first been made: the burden is on the plaintiff to show that the summons and complaint ‘cannot with reasonable diligence be personally delivered’ to the individual defendant.’”)).) The proof of service does not include a declaration of diligence. (Proof of Service, filed 3/28/19.) Therefore, the Court cannot find it demonstrates compliance with the statutory requirements.

Based on the foregoing, the hearing on Defendant’s Motion to Vacate Default and Default Judgment is CONTINUED TO MARCH 19, 2020 AT 10:30 AM IN DEPARTMENT 94. AT LEAST 16 COURT DAYS PRIOR TO THE NEW HEARING DATE, PLAINTIFF IS TO FILE AND SERVE SUPPLEMENTAL BRIEFING ADDRESSING THE LACK OF A DECLARATION OF DILIGENCE. DEFENDANT MUST FILE AND SERVE A RESPONSE AT LEAST 9 COURT DAYS PRIOR TO THE NEW HEARING DATE. IN DEFENDANT’S RESPONSE, HE MUST PROVIDE A DETAILED EXPLANATION AS TO WHY HE DID NOT RECEIVE THE DOCUMENTS PURPORTEDLY SERVED TO HIS PRIVATE MAIL BOX. PLAINTIFF MAY FILE AND SERVE A REPLY THEREAFTER AT LEAST 5 COURT DAYS BEFORE THE NEW HEARING DATE. THE COURT FURTHER ORDERS THAT THE PARTIES MUST COMPLY WITH CODE OF CIVIL PROCEDURE SECTION 1005 WITH RESPECT TO THE MANNER AND TIMING OF SERVICE OF THESE DOCUMENTS.

Plaintiff to give notice.