NAVY FEDERAL CREDIT UNION VS PROTEUS E. SPANN, ET AL.

Tentative Rulings

Case Number: 18STLC03768    Hearing Date: February 20, 2020    Dept: 25

MOTION TO SET ASIDE/VACATE DEFAULT

(CCP §§ 473(b); 473.5)

TENTATIVE RULING:

For the foregoing reasons, Defendant Proteus Spann’s Motion to Set Aside Entry of Default is CONTINUED to APRIL 27, 2020 at 10:30 a.m. in Department 25, SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defendant Spann must file and serve supplemental papers addressing the deficiencies identified herein. Failure to do so may result in the Motion being placed off calendar or denied.

OPPOSITION: Filed on January 31, 2020 [ ] Late [ ] None

REPLY: None filed as of February 19, 2020 [ ] Late [X] None

ANALYSIS:

1. Background

On March 7, 2018, Plaintiff Navy Federal Credit Union (“Plaintiff”) filed an action for claim & delivery and conversion against Defendants Proteus E. Spann aka Proteus Spann (“Spann”) and Proteus E2 Productions (“E2 Productions”) (collectively, “Defendants”). On June 3, 2019, the Court issued an Order for Publication of the Summons and Complaint as to Defendants in the Los Angeles Daily Journal (6/3/19 Orders.) On July 18, 2019, a Proof of Publication was filed. On August 29, 2019, default was entered as to both Defendants.

On September 19, 2019, Defendant Spann filed the instant Motion to Set Aside Entry of Default (the “Motion”). On November 7, 2019, the Court continued the hearing on the Motion because no proof of service as to Plaintiff was attached and because the Motion was not based on any legal authority. (11/7/19 Minute Order.) On January 29, 2020, Defendant Spann re-filed the Motion, which included a proof of service demonstrating it was properly served on Plaintiff. On January 31, 2020, Plaintiff filed an Opposition. To date, no reply brief has been filed.

1. Legal Standard & Discussion

As an initial matter, the Court notes that the instant Motion is filed only as to Defendant Spann and not as to Defendant E2 Productions. Defendant Spann seeks relief under Code of Civil Procedure sections 473, subdivision (b) and 473.5, and pursuant to the Court’s equitable powers.

A. CCP 473(b)

Under Code of Civil Procedure, subdivision (b), an application for relief must be made 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 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.) Surprise refers to “some condition or situation in which a party … is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.” (Credit Managers Assn. of Southern Calif. v. National Independent Business Alliance (1984) 162 Cal.App.3d 1166, 1173; Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206.) Excusable neglect refers to an act or omission that may have been committed by a reasonably prudent person under the same circumstances. (Transit Ads, Inc. v. Tanner Motor Livery, Limited (1969) 270 Cal.App.2d 275, 279.)

In addition, when an application for relief is made under Section 473, subdivision (b), it “shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted.”

Here, Defendant Spann’s Motion is timely. He argues that default as a result of his excusable neglect and surprise because his permanent address is in New York City, and thus he was unaware of the action and unaware that default had been taken against him. (Mot., p. 4, 6.) However, he has not attached an affidavit or declaration attesting to his surprise or excusable neglect. In addition, it is unclear from Defendant Spann’s pleadings whether he resided in New York at the time Plaintiff attempted to serve him or when publication of the action occurred as he only generally states, without providing any evidence, that his permanent address is in New York. (Id. at p. 4.) In addition, a proposed answer to the complaint is not attached to the Motion. Thus, Defendant Spann has not demonstrated he is entitled to relief under Section 473, subdivision (b).

B. CCP 473.5

Code of Civil Procedure section 473.5, subdivision (a) provides: “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.

Defendant argues that because Plaintiff never properly served him with the Summons & Complaint, the Court has no jurisdiction over him and the default entered against him is a nullity. (Mot., p. 3.) However, service by publication is a proper way to effectuate service of summons. (Code Civ. Proc., § 415.50.) Plaintiff obtained permission from the Court to effectuate service by publication after demonstrating it could not locate Defendants. (6/3/2019 Orders.) Thus, service was proper. In addition, Defendant Spann has not demonstrated he lacked actual notice of this action. As noted above, Defendant Spann has not submitted any evidence demonstrating he lived in New York as alleged at the time of attempted personal service and when notice of the action was published in the Los Angeles Daily Journal.

C. Equitable Powers

“Apart from any statute, courts have the inherent authority to vacate a default and default judgment on equitable grounds such as extrinsic fraud or extrinsic mistake. [Citations.]” (Bae v. T.D. Service Co. of Arizona (2016) 245 Cal.App.4th 89, 97.) “Extrinsic fraud occurs where one party was deprived of an opportunity to present his claim or defense in court, where he was kept ignorant or, other than from his own negligence, fraudulently prevented from fully participating in the proceeding.” (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1300.) To set aside a default or default judgment based on extrinsic fraud or mistake, the moving party must satisfy a three-part test. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 982.) “First, the defaulted party must demonstrate that it has a meritorious case. Second, the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Last [], the moving party must demonstrate diligence in seeking to set aside the default once…discovered. [Citation.]” (Id.)

Here, Defendant Spann similarly argues that he had no notice of the action or default and that he lived in New York when this action was filed. (Mot., p. 7.) However, it is unclear whether he is arguing extrinsic fraud or mistake occurred. In addition, as already noted, Defendant Spann has not provided any evidence of his residence. Furthermore, he has not discussed, and therefore not satisfied, the three-part test to demonstrate he is entitled to relief under the Court’s equitable powers.

1. Conclusion & Order

For the foregoing reasons, Defendant Proteus Spann’s Motion to Set Aside Entry of Default is CONTINUED to APRIL 27, 2020 at 10:30 a.m. in Department 25, SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defendant must file and serve supplemental papers addressing the deficiencies identified 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: 18STLC03768    Hearing Date: November 07, 2019    Dept: 94

MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT

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TENTATIVE RULING:

Defendant Proteus E. Spann aka Proteus Spann’s Motion to Set Aside Entry of Default is CONTINUED TO JANUARY 9, 2019 AT 10:30 AM IN DEPARTMENT 94.

SUMMARY OF COMPLAINT: Action for breach of vehicle purchase agreement and claim and delivery of vehicle.

REQUEST FOR RELIEF: Set aside default judgment entered against Defendant Proteus E. Spann on the grounds that he lacked actual notice of this action.

OPPOSITION: None filed as of October 31, 2019.

ANALYSIS:

On March 7, 2018, Plaintiff Navy Federal Credit Union (“Plaintiff”) filed this action against Defendant Proteus E. Spann aka Proteus Spann and Proteus E2 Productions (“Defendants”). On June 3, 2019, the Court issued an order allowing service on Defendants by publication. Following their failure to respond, default was entered against Defendants on August 29, 2019. Defendants filed the instant Motion to Vacate Default on September 19, 2019. To date, no opposition has been filed.

Discussion

As an initial matter, the Motion is not accompanied by a proof of service demonstrating that Plaintiff was given notice of the Motion or Notice of Hearing. Failure to give notice of a motion is not only a violation of the statutory requirements but of due process. (Code Civ. Proc., § 1005; Jones v. Otero (1984) 156 Cal.App.3d 754, 757.) The Court cannot rule on the Motion until Plaintiff has been given notice in accordance with the statutory requirements.

Furthermore, the Motion is not based on any legal authority. “The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” (Cal. Rules of Court, Rule 3.1113, subd. (b).) Without citation to legal authority, the Court has no basis on which to grant Defendant relief, nor has Plaintiff been provided with notice of the grounds on which Defendant moves. As default was only entered against Defendant on August 29, 2019, there are multiple legal basis under which Defendant might have intended to seek relief, including Code of Civil Procedure sections 473 and 473.5, or equitable relief.

The hearing on the Motion to Vacate Default is CONTINUED TO JANUARY 9, 2020 AT 10:30 AM IN DEPARTMENT 94. AT LEAST 16 COURT DAYS PRIOR TO THE NEW HEARING DATE, DEFENDANTS ARE TO FILE AND SERVE SUPPLEMENTAL PAPERS SETTING FORTH LEGAL BASIS FOR THEIR MOTION, APPLICABLE FACTS, AND EVIDENCE AS NECESSARY TO SUPPORT THEIR REQUEST FOR RELIEF. DEFENDANTS ARE ALSO TO CONCURRENTLY, DEFENDANTS ARE TO SERVE PLAINTIFF WITH THE ORIGINAL MOTION PAPERS, AND FILE PROOF OF SERVICE OF ALL THE MOTION PAPERS WITH THE COURT. FAILURE TO COMPLY WITH THE COURT’S ORDERS MAY RESULT IN THE MOTION BEING PLACED OFF CALENDAR OR DENIED. OPPOSITION AND REPLY PAPERS, IF ANY, MUST BE FILED AND SERVED IN ACCORDANCE WITH THE CODE OF CIVIL PROCEDURE.