This case was last updated from Los Angeles County Superior Courts on 01/15/2020 at 01:48:18 (UTC).

THE LAW OF FOX AND FOX, VS HELENA RADNIA YOUABIAN

Case Summary

On 07/16/2018 THE LAW OF FOX AND FOX filed a Contract - Other Contract lawsuit against HELENA RADNIA YOUABIAN. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is JON R. TAKASUGI. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******9569

  • Filing Date:

    07/16/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

Judge Details

Judge

JON R. TAKASUGI

 

Party Details

Plaintiff

THE LAW OF FOX AND FOX

Defendant

YOUABIAN HELENA RADNIA

Attorney/Law Firm Details

Plaintiff Attorney

FOX FRANK OLIVER

 

Court Documents

Proof of Personal Service - Proof of Personal Service

11/6/2019: Proof of Personal Service - Proof of Personal Service

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

12/2/2019: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

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

12/9/2019: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

Request for Dismissal - Request for Dismissal

12/9/2019: Request for Dismissal - Request for Dismissal

Declaration re: Attorney's Fees - Declaration re: Attorney's Fees

12/9/2019: Declaration re: Attorney's Fees - Declaration re: Attorney's Fees

Opposition (name extension) - Opposition Ex Parte Application

12/18/2019: Opposition (name extension) - Opposition Ex Parte Application

Notice of Rejection - Application for Default Judgment by Court - Contract or Tort - Notice of Rejection - Application for Default Judgment by Court - Contract or Tort

12/18/2019: Notice of Rejection - Application for Default Judgment by Court - Contract or Tort - Notice of Rejection - Application for Default Judgment by Court - Contract or Tort

Opposition (name extension) - Opposition to Ex Parte Application to Set Aside Default and Continue Trial

12/19/2019: Opposition (name extension) - Opposition to Ex Parte Application to Set Aside Default and Continue Trial

Ex Parte Application (name extension) - Ex Parte Application of Specially Appearing Defendant Re Motion to Quash Service; Set Aside Default and Continue Trial

12/19/2019: Ex Parte Application (name extension) - Ex Parte Application of Specially Appearing Defendant Re Motion to Quash Service; Set Aside Default and Continue Trial

Minute Order - Minute Order (Hearing on Ex Parte Application of Specially Appearing Defend...)

12/19/2019: Minute Order - Minute Order (Hearing on Ex Parte Application of Specially Appearing Defend...)

Notice of Rejection - Ex Parte Application Without Hearing - Notice of Rejection - Ex Parte Application Without Hearing for Publication re: Helena

4/16/2019: Notice of Rejection - Ex Parte Application Without Hearing - Notice of Rejection - Ex Parte Application Without Hearing for Publication re: Helena

Summons - on Complaint

7/16/2018: Summons - on Complaint

Complaint

7/16/2018: Complaint

Civil Case Cover Sheet

7/16/2018: Civil Case Cover Sheet

Notice of Case Assignment - Limited Civil Case

7/16/2018: Notice of Case Assignment - Limited Civil Case

6 More Documents Available

 

Docket Entries

  • 07/19/2021
  • Hearing07/19/2021 at 10:30 AM in Department 94 at 111 North Hill Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service

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  • 06/23/2020
  • Hearing06/23/2020 at 08:30 AM in Department 94 at 111 North Hill Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 12/19/2019
  • DocketEx Parte Application of Specially Appearing Defendant Re Motion to Quash Service; Set Aside Default and Continue Trial; Filed by: Helena Radnia Youabian (Defendant)

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  • 12/19/2019
  • DocketHearing on Ex Parte Application of Specially Appearing Defendant Re Motion to Quash Service; Set Aside Default and Continue Trial scheduled for 12/19/2019 at 01:30 PM in Stanley Mosk Courthouse at Department 94

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  • 12/19/2019
  • DocketNon-Jury Trial scheduled for 06/23/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 12/19/2019
  • DocketOpposition to Ex Parte Application to Set Aside Default and Continue Trial; Filed by: The Law of Fox and Fox, (Plaintiff)

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  • 12/19/2019
  • DocketMinute Order (Hearing on Ex Parte Application of Specially Appearing Defend...)

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  • 12/19/2019
  • DocketHearing on Ex Parte Application of Specially Appearing Defendant Re Motion to Quash Service; Set Aside Default and Continue Trial scheduled for 12/19/2019 at 01:30 PM in Stanley Mosk Courthouse at Department 94 updated: Result Date to 12/19/2019; Result Type to Held

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  • 12/19/2019
  • DocketPursuant to the request of moving party, Non-Jury Trial scheduled for 01/13/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94 Not Held - Advanced and Continued - by Court was rescheduled to 06/23/2020 08:30 AM

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  • 12/18/2019
  • DocketJudgment COURT JUDGMENT BY DEFAULT - Rejected; Submitted by: The Law of Fox and Fox, (Plaintiff); As to: Helena Radnia Youabian (Defendant)

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11 More Docket Entries
  • 04/16/2019
  • DocketNotice of Rejection - Ex Parte Application Without Hearing for Publication re: Helena; Filed by:

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  • 03/29/2019
  • DocketApplication APPLICATION FOR PUBLICATION; Filed by: The Law of Fox and Fox, (Plaintiff); As to: Helena Radnia Youabian (Defendant)

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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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  • 07/16/2018
  • DocketComplaint; Filed by: The Law of Fox and Fox, (Plaintiff); As to: Helena Radnia Youabian (Defendant)

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  • 07/16/2018
  • DocketCivil Case Cover Sheet; Filed by: The Law of Fox and Fox, (Plaintiff)

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  • 07/16/2018
  • DocketSummons on Complaint; Issued and Filed by: Clerk

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  • 07/16/2018
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 07/16/2018
  • DocketCase assigned to Hon. Jon R. Takasugi in Department 94 Stanley Mosk Courthouse

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  • 07/16/2018
  • DocketNon-Jury Trial scheduled for 01/13/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 07/16/2018
  • DocketOrder to Show Cause - Failure to File Proof of Service scheduled for 07/19/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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Tentative Rulings

Case Number: 18STLC09569    Hearing Date: February 08, 2021    Dept: 25

HEARING DATE: Mon., February 8, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: The Law of Fox & Fox v. Youabian COMPL. FILED: 07-16-18

CASE NUMBER: 18STLC09569 DISC. C/O: 01-11-21

NOTICE: OK DISC. MOT. C/O: 01-26-21

TRIAL DATE: 02-10-21

PROCEEDINGS: DEMURRER TO DEFENDANT’S CROSS-COMPLAINT

MOVING PARTY: Plaintiff the Law Firm of Fox & Fox

RESP. PARTY: None

DEMURRER

(CCP § 430.10, et seq.)

TENTATIVE RULING:

Because Defendant Helena Radnia Youabian improperly filed the Cross-Complaint while in default, it is HEREBY STRICKEN on the Court’s own motion. Accordingly, the Demurrer to the Cross-Complaint is PLACED OFF CALENDAR AS MOOT.

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 4, 2021 [ ] Late [X] None

REPLY: None filed as of February 4, 2021 [ ] Late [X] None

ANALYSIS:

  1. Background

On July 16, 2018, Plaintiff The Law Firm of Fox & Fox (“Plaintiff”) filed an action for breach of contract and common counts against Defendant Helena Radnia Youabian (“Defendant”). On November 6, 2019, Plaintiff filed a Proof of Service purporting to show that Defendant was personally served with the Summons and Complaint. Following Defendant’s failure to respond to the Complaint, default was entered against her on December 2, 2019.

On April 13, 2020, Defendant filed a motion to quash service and set aside default. While that motion was still pending, Defendant filed an Answer and a Cross-Complaint. Plaintiff filed the instant Demurrer to the Cross-Complaint on October 14, 2020.

After multiple continuances, supplemental briefing, and having taken the matter under submission, this Court denied Defendant’s motion to set aside the default and quash service. (12/9/20 Minute Order.)

No opposition to the Demurrer was filed.

  1. Legal Standard

“The primary function of a pleading is to give the other party notice so that it may prepare its

case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to

affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)

“A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of

America, N.A. (2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges

facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not

“read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the

complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank,

N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] the truth of the properly pleaded

factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of

which judicial notice has been taken.” (Harris, supra, 56 Cal.4th p. 240.) “The court does not,

however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v.

Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

A general demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted or under section 430.10, subdivision (a), where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. All other grounds listed in Section 430.10, including uncertainty under subdivision (f), are special demurrers. Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

Finally, Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

  1. Discussion

As noted above, Defendant filed the Cross-Complaint without first setting aside the default entered against her. “The clerk’s entry of default cuts off the defendant’s right to take further affirmative steps such as filing a pleading or motion, and the defendant is not entitled to notices or service of pleadings or papers.” (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1301.) (Emphasis added.) For this reason, the Cross-Complaint is STRICKEN on the Court’s own motion pursuant to Code of Civil Procedure section 436. Accordingly, the Demurrer is PLACED OFF CALENDAR AS MOOT.

  1. Conclusion & Order

Because Defendant Helena Radnia Youabian improperly filed the Cross-Complaint while in default, it is HEREBY STRICKEN on the Court’s own motion. Accordingly, the Demurrer to the Cross-Complaint is PLACED OFF CALENDAR AS MOOT.

Moving party is ordered to give notice.

Case Number: 18STLC09569    Hearing Date: December 09, 2020    Dept: 25

HEARING DATE:    Wed., December 9, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Law Firm of Fox & Fox v. Radnia Youabian COMPL. FILED: 07-16-18

CASE NUMBER:     18STLC09569 DISC. C/O:     01-11-21

NOTICE:   OK MOTION C/O: 01-26-21

TRIAL DATE: 02-10-21

PROCEEDINGS:     MOTION TO QUASH SERVICE AND SET ASIDE DEFAULT

MOVING PARTY:   Defendant Helena Radnia Youabian, in pro per

RESP. PARTY: Plaintiff The Law Firm of Fox & Fox

MOTION TO SET ASIDE DEFAULT & DEFAULT JUDGMENT; MOTION TO QUASH SERVICE OF PROCESS

(CCP §§ 473, 473.5, 418.10)

TENTATIVE RULING:

Defendant Helena Radnia Youabian’s Motion to Quash Service and Set Aside Default is 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: Filed on July 15, 2020 [X] Late [   ] None

REPLY: Filed on July 20, 2020 [   ] Late [   ] None

ANALYSIS:

I. Background

On July 16, 2018, Plaintiff The Law Firm of Fox & Fox (“Plaintiff”) filed an action for breach of contract and common counts against Defendant Helena Radnia Youabian (“Defendant”). On November 6, 2019, Plaintiff filed a Proof of Service indicating that Defendant was personally served by a registered process server on November 1, 2019 at 1457 Armacost Ave., Apt. 202, Los Angeles, CA 90025 (the “Armacost Address”). Following Defendant’s failure to respond to the Complaint, default was entered against her on December 2, 2019.

On December 19, 2019, Defendant, in pro per, filed an Ex Parte Application re Motion to Quash Service, Set Aside Default and Continue Trial (the “Ex Parte Application”). That same day, the Court granted Defendant’s Ex Parte Application, in part, and continued the trial date to June 23, 2020. (12/19/19 Minute Order.)

On April 13, 2020, Defendant filed the instant Motion to Quash Service and Set Aside Default (the “Motion”). Plaintiff filed a late Opposition on July 15, 2020 and Defendant filed a Reply on July 20, 2020.

At the initial July 27, 2020 hearing, the Court ordered Defendant to file and serve supplemental papers demonstrating what her address was at the time of purported service, to pay an additional filing fee, and to file and serve a copy of her proposed answer. (7/27/20 Minute Order.) Plaintiff was also ordered to file an amended proof of service for the summons and complaint because the one filed on November 6, 2019 appeared to contain an error. (Id.) On August 3, 2020, Plaintiff filed an amended proof of service correcting the error. (8/3/20 Fox Decl., ¶¶ 2-3, Exh. A; Proof of Service.) Defendant filed supplemental papers on September 22 and 23, 2020.

On October 14, 2020, after hearing oral argument from Defendant, the Court continued the hearing and ordered the parties to meet and confer in good faith regarding a settlement of the case. (10/14/20 Minute Order.) Defendant filed a declaration on October 28, 2020 and Plaintiff filed a reply to that declaration on November 4, 2020. In this second set of supplemental papers, both parties argued that the other did not meet and confer in good faith before today’s hearing. Specifically, Defendant stated that she called and left voicemails for Plaintiff on October 15, 16, and 20, but was never called back to discuss a resolution of the case. (10/28/20 Radnia Decl., ¶¶ 4-6.) She also stated that, because Plaintiff would not return her calls, she mailed a check for $5,957.62, the full amount demanded in the Complaint, via certified mail on October 19, 2020. (Id. at ¶¶ 7,8, Exh. A.) Notably, the certified mail receipt Defendant submitted as evidence was incomplete and did not state to whom her letter was mailed. (Id.) She stated, however, that after not hearing back from Plaintiff, she learned from someone at the Post Office that Plaintiff had refused her letter. (Id.) In response, Plaintiff argued Defendant’s assertion that she attempted to contact Plaintiff via telephone and left messages was false. (11/4/20 Fox Sur-Reply., ¶ 8.) Plaintiff’s counsel also asserted he never received a check from Defendant, via certified mail or otherwise, and that he never refused to receive any parcel of mail from anyone. (Id. at ¶ 9.) Plaintiff further stated that on November 2, 2020, the parties spoke over the phone and that Defendant agreed to sign a stipulated judgment. (Id. at ¶ 5.) However, Plaintiff states that after sending the proposed stipulated judgment to Defendant, she called Plaintiff’s office and stated that she never agreed to sign anything. (Id.)

At the November 9th continued hearing, the Court heard further oral arguments from both parties and continued the hearing one last time. (11/9/20 Minute Order.) The Court ordered the parties to meet and confer one last time in good faith regarding settlement of the case and ordered Defendant to provide the Court will all supporting evidence the debt was previously paid in full prior to the next hearing date. (Id.)

Plaintiff filed a supplemental declaration on December 1, 2020. The supplemental declaration states that Plaintiff is entitled to at least $8,731.66, which includes damages, attorney’s fees and costs, and interest of 10% from September 20, 2016 as provided in the parties’ underlying settlement agreement. (12/1/20 Fox Decl., ¶¶ 2-4.) It also states that Defendant, for the first time, argued she sent a check for $2,150.00 in February 2017 and that this check was never before mentioned in the parties’ discussions. (Id. at ¶ 5, Exh. H.) However, Defendant did not provide a copy of this check to Plaintiff, and Defendant has not filed any supplemental papers with evidence she previously paid in full as requested by the Court.

As it appears the parties have not reached a settlement, the Court proceeds to rule on the Motion.  

II. Legal Standard & Discussion

When a motion to quash is brought concurrently with a motion to vacate default, the court must rule on the motion to vacate first. (Steven M. Garber & Assocs. v Eskandarian (2007) 150 Cal.App.4th 813, 823-24 (holding that a defendant against whom a default has been entered is out of court and is not entitled to take any further affirmative steps in the action except for a motion for relief from the default).) Accordingly, the Court considers Defendant’s request for relief from default first.

A.  Motion to Set Aside Default

Defendant argues she was never served with the Summons and Complaint. (Mot., p. 4:1-3, Radnia Decl., ¶ 2).   

“‘A summons is the process by which a court acquires personal jurisdiction over a defendant in a civil action’ [citation], and a defendant has an absolute right to demand that process be issued against him in a manner prescribed by law.” (Mannesmann DeMag, Ltd. v. Superior Court (1985) 172 Cal.App.3d 1118, 1122.) “Constitutional due process requirements are satisfied where the form of service provided and employed is reasonably calculated to give a litigant actual notice of the proceedings and an opportunity to be heard.” (Crescendo Corp. v. Shelted, Inc. (1968) 267 Cal.App.2d 209, 213.) “‘[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.] Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. [Citation.]’” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.) “‘[A] void at any time (Rockefeller Technology Investments (Asia) VII v. Changzhou Sinotype Technology Co., Ltd. (2018) 24 Cal.App.5th 115, 136.)

Code of Civil Procedure section 473.5 states, in relevant part:

(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. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.

(b) A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.    

(c) Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.

(Code Civ. Proc., § 473.5, subds. (a)-(c).)

A proof of service containing a declaration from a registered process server invokes a presumption of valid service.  (See American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; see also Evid. Code § 647.)  This presumption is rebuttable.  (See id.)  The party seeking to defeat service of process must present sufficient evidence to show that the service did not take place as stated.  (See Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1428; cf. People v. Chavez (1991) 231 Cal.App.3d 1471, 1483 [“If some fact be presumed, the opponent of that fact bears the burden of producing or going forward with evidence sufficient to overcome or rebut the presumed fact.”].)  Merely denying service took place without more is insufficient to overcome the presumption.  (See Yadegar, supra, 194 Cal.App.4th at 1428.)

As noted in the Court’s July 27th Order, Defendant’s Motion is timely. She argues she was never served with the Summons and Complaint because she did not live at the Armacost Address at the time service purportedly occurred. (Mot., Radnia Decl., ¶ 3.) Plaintiff’s proof of service demonstrates a registered process server completed service, so it is entitled to a rebuttable presumption of validity. (See American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; see also Evid. Code § 647.) Thus, Defendant must present sufficient evidence to demonstrate that the service did not take place as stated. (See Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1428; cf. People v. Chavez (1991) 231 Cal.App.3d 1471, 1483 [“If some fact be presumed, the opponent of that fact bears the burden of producing or going forward with evidence sufficient to overcome or rebut the presumed fact.”].) 

In her moving papers, Defendant stated that, since late 2017, she has not resided at the Armacost Address. (Mot., Radnia Decl., ¶ 3, Exh. A.) She also submitted a copy of an email purportedly sent to a property management company on November 10, 2017 with her notice of intent to vacate her apartment. (Id.) However, at the initial hearing, the Court noted this was insufficient because the email did not specify the address or the apartment number that was to be vacated. (7/27/20 Minute Order.) This email also does not demonstrate Defendant actually vacated her apartment. In addition, Defendant submitted the declarations of Ethan Yazd. Mr. Yazd stated that Defendant moved into his residence at 18600 Clark St. #105, Tarzana CA 91356 (the “Clark St. Address”) in September 2019, and that they both lived there until December 2019. (9/22/20 Yazd Decl., ¶ 2; 10/28/20 Yazd Decl., ¶ 2.) Defendant submitted supplemental declarations stating the same. (9/22/20 Radnia Decl., ¶ 2; 10/28/20 Radnia Decl., ¶ 11.)

However, the Court finds this evidence insufficient. Despite multiple opportunities, Defendant did not provide any documentary evidence, such as a USPS change of address confirmation, bills, or other address-bearing documents that demonstrate she did not live at the Armacost Address on November 1, 2019. Thus, Defendant has not overcome the presumption that she was properly served by a registered process server.

For these reasons, the Court finds Defendant’s evidence insufficient to demonstrate she was never served with the Summons and Complaint. Accordingly, Defendant’s request to set aside default is DENIED.

B. Motion to Quash

Steven M. Garber & Associates v. Eskandarian (2007) 150 Cal.App.4th 813, 824 [“The entry of a default cuts off the right to file pleadings and motions…”].)

III. Conclusion & Order

 

For the foregoing reasons, Defendant Helena Radnia Youabian’s Motion to Quash Service and Set Aside Default is DENIED.

Moving party is ordered to give notice.

Case Number: 18STLC09569    Hearing Date: November 09, 2020    Dept: 25

HEARING DATE: Mon., November 9, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Law Firm of Fox & Fox v. Youabian COMPL. FILED: 07-16-18

CASE NUMBER: 18STLC09569 DISC. C/O: 01-11-21

NOTICE: OK MOTION C/O: 01-26-21

TRIAL DATE: 02-10-21

PROCEEDINGS: MOTION TO QUASH SERVICE AND SET ASIDE DEFAULT

MOVING PARTY: Defendant Helena Radnia Youabian, in pro per

RESP. PARTY: Plaintiff The Law Firm of Fox & Fox

MOTION TO SET ASIDE DEFAULT & DEFAULT JUDGMENT; MOTION TO QUASH SERVICE OF PROCESS

(CCP §§ 473, 473.5, 418.10)

TENTATIVE RULING:

No tentative ruling is issued at this time. The parties are ordered to appear at the hearing to discuss their good faith meet and confer efforts and the reason why Defendant’s offer to settle the action for the full amount demanded under the Complaint is insufficient.

[

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 July 15, 2020 [X] Late [ ] None

REPLY: Filed on July 20, 2020 [ ] Late [ ] None

ANALYSIS:

  1. Background & Discussion

On July 16, 2018, Plaintiff The Law Firm of Fox & Fox (“Plaintiff”) filed an action for breach of contract and common counts against Defendant Helena Radnia Youabian (“Defendant”). On November 6, 2019, Plaintiff filed a Proof of Service indicating that Defendant was personally served by a registered process server on November 1, 2019 at 1457 Armacost Ave., Apt. 202, Los Angeles, CA 90025 (the “Armacost Address”). Following Defendant’s failure to respond to the Complaint, default was entered against her on December 2, 2019.

On December 19, 2019, Defendant, in pro per, filed an Ex Parte Application re Motion to Quash Service, Set Aside Default and Continue Trial (the “Ex Parte Application”). That same day, the Court granted Defendant’s Ex Parte Application, in part, and continued the trial date to June 23, 2020. (12/19/19 Minute Order.)

On April 13, 2020, Defendant filed the instant Motion to Quash Service and Set Aside Default (the “Motion”). Plaintiff filed a late Opposition on July 15, 2020 and Defendant filed a Reply on July 20, 2020.

At the initial July 27, 2020 hearing, the Court ordered Defendant to file and serve supplemental papers demonstrating what her address was at the time of purported service, to pay an additional filing fee, and to file and serve a copy of her proposed answer. (7/27/20 Minute Order.) Plaintiff was also ordered to file an amended proof of service for the summons and complaint because the one filed on November 6, 2019 appeared to contain an error. (Id.) Specifically, the proof of service stated that Defendant was personally served, but also checked off Item 5(b)(1) for substitute service indicating the Armacost Address was a business address. (Id.) On August 3, 2020, Plaintiff submitted a declaration explaining the previously filed proof of service inadvertently checked off Item 5(b)(1) and filed an amended proof of service correcting the error. (8/3/20 Fox Decl., ¶¶ 2-3, Exh. A; Proof of Service.) Defendant filed supplemental papers on September 22 and 23, 2020.

On October 14, 2020, after hearing oral argument from Defendant, the Court continued the hearing and ordered the parties to meet and confer in good faith regarding a settlement of the case. (10/14/20 Minute Order.) Defendant filed a declaration on October 28, 2020 and Plaintiff filed a reply to that declaration on November 4, 2020.

In their second set of supplemental papers, both parties argue that the other did not meet and confer in good faith before today’s hearing. Specifically, Defendant states that she called and left voicemails for Plaintiff on October 15, 16, and 20, but was never called back to discuss a resolution of the case. (10/28/20 Radnia Decl., ¶¶ 4-6.) She also states that, because Plaintiff would not return her calls, she mailed a check for $5,957.62, the full amount demanded in the Complaint, via certified mail on October 19, 2020. (Id. at ¶¶ 7,8, Exh. A.) Notably, the certified mail receipt Defendant submits as evidence is incomplete and does not state to whom her letter was mailed. (Id.) She states, however, that after not hearing back from Plaintiff, she learned from someone at the Post Office that Plaintiff had refused her letter. (Id.) In response, Plaintiff argues Defendant’s assertion that she attempted to contact Plaintiff via telephone and left messages is false. (11/4/20 Fox Sur-Reply., ¶ 8.) Plaintiff also asserts that it never received a check from Defendant, via certified mail or otherwise, and that it never refused to receive any parcel of mail from anyone. (Id. at ¶ 9.) Plaintiff further states that on November 2, 2020, the parties spoke over the phone and that Defendant agreed to sign a stipulated judgment. (Id. at ¶ 5.) However, Plaintiff states that after sending the proposed stipulated judgment to Defendant, she called Plaintiff’s office and stated that she never agreed to sign anything. (Id.) Plaintiff did not attach a copy of the proposed stipulated judgment sent to Defendant for the Court’s review.

As both parties present different versions of the events that transpired after this Court ordered them to meet and confer in good faith, the parties are ordered to appear at the hearing and discuss their good faith settlement efforts, as well as the reason why Defendant’s offer to settle the case for $5,957.62, the full amount demanded under the Complaint, is insufficient.

  1. Conclusion & Order

For the foregoing reasons, no tentative ruling is issued at this time. The parties are ordered to appear at the hearing to discuss their good faith meet and confer efforts and the reason why Defendant’s offer to settle the action for the full amount demanded under the Complaint is insufficient.

Moving party is ordered to give notice.

Case Number: 18STLC09569    Hearing Date: October 14, 2020    Dept: 25

HEARING DATE: Wed., October 14, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Law Firm of Fox & Fox v. Youabian COMPL. FILED: 07-16-18

CASE NUMBER: 18STLC09569 DISC. C/O: 01-11-21

NOTICE: OK MOTION C/O: 01-26-21

TRIAL DATE: 02-10-21

PROCEEDINGS: MOTION TO QUASH SERVICE AND SET ASIDE DEFAULT

MOVING PARTY: Defendant Helena Radnia Youabian, in pro per

RESP. PARTY: Plaintiff The Law Firm of Fox & Fox

MOTION TO SET ASIDE DEFAULT & DEFAULT JUDGMENT; MOTION TO QUASH SERVICE OF PROCESS

(CCP §§ 473, 473.5, 418.10)

TENTATIVE RULING:

Defendant Helena Radnia Youabian’s Motion to Quash Service and Set Aside Default is 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: Filed on July 15, 2020 [X] Late [ ] None

REPLY: Filed on July 20, 2020 [ ] Late [ ] None

ANALYSIS:

  1. Background

On July 16, 2018, Plaintiff The Law Firm of Fox & Fox (“Plaintiff”) filed an action for breach of contract and common counts against Defendant Helena Radnia Youabian (“Defendant”). On November 6, 2019, Plaintiff filed a Proof of Service indicating that Defendant was personally served by a registered process server on November 1, 2019 at 1457 Armacost Ave., Apt. 202, Los Angeles, CA 90025 (the “Armacost Address”). Following Defendant’s failure to respond to the Complaint, default was entered against her on December 2, 2019.

On December 19, 2019, Defendant, in pro per, filed an Ex Parte Application re Motion to Quash Service, Set Aside Default and Continue Trial (the “Ex Parte Application”). That same day, the Court granted Defendant’s Ex Parte Application, in part, and continued the trial date to June 23, 2020. (12/19/19 Minute Order.)

On April 13, 2020, Defendant filed the instant Motion to Quash Service and Set Aside Default (the “Motion”). Plaintiff filed a late Opposition on July 15, 2020 and Defendant filed a Reply on July 20, 2020.

At the initial July 27, 2020 hearing, the Court ordered Defendant to file and serve supplemental papers demonstrating what her address was at the time of purported service, to pay an additional filing fee, and to file and serve a copy of her proposed answer. (7/27/20 Minute Order.) Plaintiff was also ordered to file an amended proof of service for the summons and complaint because the one filed on November 6, 2019 appeared to contain an error. (Id.) Specifically, the proof of service stated that Defendant was personally served, but also checked off Item 5(b)(1) for substitute service indicating the Armacost Address was a business address. (Id.) On August 3, 2020, Plaintiff submitted a declaration explaining the previously filed proof of service inadvertently checked off Item 5(b)(1) and filed an amended proof of service correcting the error. (8/3/20 Fox Decl., ¶¶ 2-3, Exh. A; Proof of Service.)

Defendant filed supplemental papers on September 22 and 23, 2020.

  1. Legal Standard & Discussion

When a motion to quash is brought concurrently with a motion to vacate default, the court must rule on the motion to vacate first. (Steven M. Garber & Assocs. v Eskandarian (2007) 150 Cal.App.4th 813, 823-24 (holding that a defendant against whom a default has been entered is out of court and is not entitled to take any further affirmative steps in the action except for a motion for relief from the default).) Accordingly, the Court considers Defendant’s request for relief from default first.

A. Motion to Set Aside Default

Defendant argues she was never served with the Summons and Complaint. (Mot., p. 4:1-3, Radnia Decl., ¶ 2).

“‘A summons is the process by which a court acquires personal jurisdiction over a defendant in a civil action’ [citation], and a defendant has an absolute right to demand that process be issued against him in a manner prescribed by law.” (Mannesmann DeMag, Ltd. v. Superior Court (1985) 172 Cal.App.3d 1118, 1122.) “Constitutional due process requirements are satisfied where the form of service provided and employed is reasonably calculated to give a litigant actual notice of the proceedings and an opportunity to be heard.” (Crescendo Corp. v. Shelted, Inc. (1968) 267 Cal.App.2d 209, 213.) “‘[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.] Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. [Citation.]’” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.) “‘[A] void at any time (Rockefeller Technology Investments (Asia) VII v. Changzhou Sinotype Technology Co., Ltd. (2018) 24 Cal.App.5th 115, 136.)

Code of Civil Procedure section 473.5 states, in relevant part:

  1. 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. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.

  2. A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.

  3. Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.

(Code Civ. Proc., § 473.5, subds. (a)-(c).)

A proof of service containing a declaration from a registered process server invokes a presumption of valid service. (See American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; see also Evid. Code § 647.) This presumption is rebuttable. (See id.) The party seeking to defeat service of process must present sufficient evidence to show that the service did not take place as stated. (See Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1428; cf. People v. Chavez (1991) 231 Cal.App.3d 1471, 1483 [“If some fact be presumed, the opponent of that fact bears the burden of producing or going forward with evidence sufficient to overcome or rebut the presumed fact.”].) Merely denying service took place without more is insufficient to overcome the presumption. (See Yadegar, supra, 194 Cal.App.4th at 1428.)

As noted in the Court’s July 27th Order, Defendant’s Motion is timely. She argues she was never served with the Summons and Complaint because she did not live at the Armacost Address at the time service purportedly occurred. (Mot., Radnia Decl., ¶ 3.) Plaintiff’s proof of service demonstrates a registered process server completed service, so it is entitled to a rebuttable presumption of validity. (See American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; see also Evid. Code § 647.) Defendant must present sufficient evidence to demonstrate that the service did not take place as stated. (See Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1428; cf. People v. Chavez (1991) 231 Cal.App.3d 1471, 1483 [“If some fact be presumed, the opponent of that fact bears the burden of producing or going forward with evidence sufficient to overcome or rebut the presumed fact.”].)

In her moving papers, Defendant stated that, since late 2017, she has not resided at the Armacost Address. (Mot., Radnia Decl., ¶ 3, Exh. A.) She also submitted a copy of an email purportedly sent to a property management company on November 10, 2017 with her notice of intent to vacate her apartment. (Id.) However, at the initial hearing, the Court noted this was insufficient because the email did not specify the address or the apartment that was to be vacated. (7/27/20 Minute Order.) On September 22, 2020, Defendant submitted the declaration of Ethan Yazd. Mr. Yazd states that Defendant moved into his residence at 18600 Clark St., Tarzana CA 91356 (the “Clark St. Address”) in September 2019, and that they both lived there until December 2019. (9/22/20 Yazd Decl., ¶ 2.) Defendant also submits a supplemental declaration stating the same. (9/22/20 Radnia Decl., ¶ 2.)

However, the Court finds this evidence insufficient. First, it appears that the Clark St. Address is an apartment building. Thus, because neither Defendant nor Mr. Yazd provided an apartment number at which they allegedly resided from September 2019 to December 2019, their declarations appear to be incomplete. In addition, Defendant did not provide any documentary evidence that demonstrates she lived at the Clark St. Address on November 1, 2019. Further still, although the Court previously noted Defendant’s November 10, 2017 email was insufficient to demonstrate she vacated her apartment at the Armacost Address, Defendant submitted no additional evidence demonstrating she did so.

For these reasons, the Court finds Defendant’s vague evidence insufficient to demonstrate she was never served with the Summons and Complaint. Accordingly, Defendant’s request to set aside default is DENIED.

B. Motion to Quash

As the Court denied Defendant’s request to set aside the default entered against her, the request to quash service of summons is also DENIED. (Steven M. Garber & Associates v. Eskandarian (2007) 150 Cal.App.4th 813, 824 [“The entry of a default cuts off the right to file pleadings and motions…”].)

  1. Conclusion & Order

For the foregoing reasons, Defendant Helena Radnia Youabian’s Motion to Quash Service and Set Aside Default is DENIED.

Moving party is ordered to give notice.

Case Number: 18STLC09569    Hearing Date: July 27, 2020    Dept: 25

HEARING DATE: Mon., July 27, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Law Firm of Fox & Fox v. Youabian COMPL. FILED: 07-16-18

CASE NUMBER: 18STLC09569 DISC. C/O: 01-11-21

NOTICE: OK MOTION C/O: 01-26-21

TRIAL DATE: 02-10-21

PROCEEDINGS: MOTION TO QUASH SERVICE AND SET ASIDE DEFAULT

MOVING PARTY: Defendant Helena Radnia Youabian, in pro per

RESP. PARTY: Plaintiff The Law Firm of Fox & Fox

MOTION TO SET ASIDE DEFAULT & DEFAULT JUDGMENT; MOTION TO QUASH SERVICE OF PROCESS

(CCP §§ 473, 473.5, 418.10)

TENTATIVE RULING:

Defendant Helena Radnia Youabian’s Motion to Quash Service and Set Aside Default is CONTINUED TO OCTOBER 14, 2020 at 10:00 a.m. in Department 25 at the 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. Defendant must also pay one additional filing fee. 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: Filed on July 15, 2020 [X] Late [ ] None

REPLY: Filed on July 20, 2020 [ ] Late [ ] None

ANALYSIS:

  1. Background

On July 16, 2018, Plaintiff The Law Firm of Fox & Fox (“Plaintiff”) filed an action for breach of contract and common counts against Defendant Helena Radnia Youabian (“Defendant”). On November 6, 2019, Plaintiff filed a Proof of Service indicating that Defendant was personally served by a registered process server on November 1, 2019 at 1457 Armacost Ave., Apt. 202, Los Angeles, CA 90025 (the “Armacost Address”). Following Defendant’s failure to respond to the Complaint, default was entered against her on December 2, 2019.

On December 19, 2019, Defendant, in pro per, filed an Ex Parte Application re Motion to Quash Service, Set Aside Default and Continue Trial (the “Ex Parte Application”). That same day, the Court granted Defendant’s Ex Parte Application, in part, and continued the trial date to June 23, 2020. (12/19/19 Minute Order.)

On April 13, 2020, Defendant filed the instant Motion to Quash Service and Set Aside Default (the “Motion”), which was initially set for hearing for May 12, 2020 at 10:30 a.m. On April 21, 2020, the Court continued the hearing to July 27, 2020 at 9:00 a.m. (4/21/20 Notice re Continuance of Hearing.) Plaintiff was ordered to give notice of the continuance and file a proof of service demonstrating it gave such notice. (Id.) Plaintiff did not do so.

On July 15, 2020, Plaintiff filed a late Opposition, and on July 20, 2020, Defendant filed a Reply.

  1. Legal Standard & Discussion

When a motion to quash is brought concurrently with a motion to vacate default, the court must rule on the motion to vacate first. (Steven M. Garber & Assocs. v Eskandarian (2007) 150 Cal.App.4th 813, 823-24 (holding that a defendant against whom a default has been entered is out of court and is not entitled to take any further affirmative steps in the action except for a motion for relief from the default).) Accordingly, the Court considers Defendant’s request for relief from default first.

A. Motion to Set Aside Default

Defendant seeks relief from default under Code of Civil Procedure section 473, subdivision (b). Under this statute, an application for relief 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.)

However, Defendant does not argue that she failed to present a defense to this action due to her mistake, inadvertence, surprise, or inexcusable neglect; rather, she argues she was never served with the Summons and Complaint. (Mot., p. 4:1-3, Radnia Decl., ¶ 2). Thus, the statute under which Defendant may be entitled to relief is Code of Civil Procedure section 473.5.

1. CCP 473.5

Code of Civil Procedure section 473.5 provides that “[w]hen 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…and for leave to defend the action.” (Code Civ. Proc., § 473.5, subd. (a).) The motion must be made within a reasonable time, but not exceeding two years after the entry of default judgment or 180 days after service on him or her of a written notice of the default or default judgment. (Id.) In addition, the Motion must “be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect,” as well as a a copy of the proposed pleading to be filed in the action. (Code Civ. Proc., § 473.5, subd. (b).)

Defendant’s Motion is timely. She argues she was never served with the Summons and Complaint because she did not live at the Armacost Address at the time service purportedly occurred. (Mot., Radnia Decl., ¶ 3.) Plaintiff’s proof of service demonstrates a registered process server completed service, so it is entitled to a rebuttable presumption of validity. (See American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; see also Evid. Code § 647.) Defendant must present sufficient evidence to demonstrate that the service did not take place as stated. (See Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1428; cf. People v. Chavez (1991) 231 Cal.App.3d 1471, 1483 [“If some fact be presumed, the opponent of that fact bears the burden of producing or going forward with evidence sufficient to overcome or rebut the presumed fact.”].)

Defendant points out Plaintiff’s proof of service indicates she was personally served at the Armacost Address, but also that the documents were left with a person in charge of the office or usual place of business of the Defendant. (11/6/19 Proof of Service, ¶ 5.) Although it appears the box indicating the documents were left at a business address was inadvertently checked off, Plaintiff is ordered to file an amended proof of service so that the Court can correctly determine how Plaintiff was served.

Defendant also submits a declaration stating that, since late 2017, she has not resided at the Armacost Address and provides a copy of an email she sent to her property management company on November 10, 2017 with her notice of intent to vacate her apartment. (Mot., Radnia Decl., ¶ 3, Exh. A.) However, the email does not specify what address or apartment number was to be vacated. (Id.) In addition, Defendant has not provided any evidence establishing what her address was at the time she was purportedly served. Thus, Defendant is ordered to file and serve a supplemental declaration and any documentary evidence demonstrating what her address was on November 1, 2019.

Plaintiff argues Defendant had notice of this action because, on October 30, 2019, it sent an email to her at hradnia@yahoo.com with a copy of the Summons and Complaint, reminding Defendant that an answer needed to be filed by November 29, 2019. (Oppo., Fox Decl., ¶ 4, Exh. C.) In Reply, Defendant argues she no longer used the Yahoo email address and that she informed Plaintiff via email on September 28, 2016 that any email correspondence should be sent to hradnia26@gmail.com. (Reply, p. 2:10-13, Exh. A.) Based on this, the Court cannot determine that Defendant had actual notice of the action in October 2019.

Finally, the Motion is not accompanied by a copy of the proposed pleading to be filed as required by Code of Civil Procedure section 473.5, subdivision (b). Defendant is ordered to file and serve a copy of her proposed answer.

Thus, Defendant is ordered to file and serve supplemental papers addressing the deficiencies noted above.

B. Motion to Quash

As Defendant’s request to set aside the default must be resolved first, the Court continues the hearing on the Motion to Quash. In addition, the Court notes that Defendant paid only one filing fee for what should have been two separate motions. However, filing as a single motion negatively impacts the Court’s calendar by placing more motions on the 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, Defendant is ordered to pay one additional filing fee at least 16 court days before the next scheduled hearing.

  1. Conclusion & Order

For the foregoing reasons, Defendant Helena Radnia Youabian’s Motion to Quash Service and Set Aside Default is CONTINUED TO OCTOBER 14, 2020 at ­­­­10:00 a.m. in Department 25 at the 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.

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