On 06/24/2016 BIGGINSLAW INC filed a Contract - Other Contract lawsuit against ODINAMBA CULTURAL ASSOCIATION INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Disposed - Judgment Entered.
Disposed - Judgment Entered
Stanley Mosk Courthouse
Los Angeles, California
DOES 1 TO 10
ODINAMBA CULTURAL ASSOCIATION INC.
BIGGINS LAW GROUP
9/17/2018: MEMORANDUM OF COSTS AFTER JUDGMENT ACKNOWLEDGMENT OF CREDIT AND DECLARATION OF ACCURED INTEREST
7/6/2016: NOTICE OF CASE MANAGEMENT CONFERENCE
8/23/2016: PROOF OF SERVICE OF SUMMONS
9/28/2016: REQUEST FOR ENTRY OF DEFAULT
10/27/2016: Minute Order
11/14/2016: REQUEST FOR ENTRY OF DEFAULT AND COURT JUDGMENT
11/14/2016: Minute Order
11/14/2016: REQUEST FOR DISMISSAL
11/14/2016: BRIEF STATEMENT IN SUPPORT OF REQUEST FOR DEFAULT JUDGMENT; DECLARATION OF CHAD BIGGINS; EXHIBITS
11/14/2016: JUDGMENT BY COURT BY DEFAULT
MEMORANDUM OF COSTS AFTER JUDGMENT ACKNOWLEDGMENT OF CREDIT AND DECLARATION OF ACCURED INTERESTRead MoreRead Less
Memorandum - Other; Filed by Bigginslaw, Inc. (Plaintiff)Read MoreRead Less
at 08:30 AM in Department 78; Unknown Event Type - Not Held - Advanced and VacatedRead MoreRead Less
Writ issued; Filed by ClerkRead MoreRead Less
Abstract of Judgment - Civil and Small Claims; Filed by CreditorRead MoreRead Less
at 08:30 AM in Department 78; Court Order - HeldRead MoreRead Less
Minute OrderRead MoreRead Less
Default Judgment; Filed by Bigginslaw, Inc. (Plaintiff)Read MoreRead Less
REQUEST FOR DISMISSALRead MoreRead Less
Request for Entry of Default / Judgment; Filed by Bigginslaw, Inc. (Plaintiff)Read MoreRead Less
Case Management Statement; Filed by Plaintiff/PetitionerRead MoreRead Less
Default Entered; Filed by Plaintiff/PetitionerRead MoreRead Less
CASE MANAGEMENT STATEMENTRead MoreRead Less
Proof-Service/SummonsRead MoreRead Less
PROOF OF SERVICE OF SUMMONSRead MoreRead Less
NOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
Notice of Case Management Conference; Filed by ClerkRead MoreRead Less
COMPLAINT-CONTRACTRead MoreRead Less
SUMMONSRead MoreRead Less
Complaint; Filed by Bigginslaw, Inc. (Plaintiff)Read MoreRead Less
Case Number: BC624989 Hearing Date: August 03, 2020 Dept: 78
ODINAMBA CULTURAL ASSN., et al.,
Case No.: BC624989
Hearing Date: August 3, 2020
[TENTATIVE] RULING RE:
SPECIALLY APPEARING DEFENDANT OKWII AGBO’S MOTION TO SET ASIDE AND VACATE ENTRY OF DEFAULT
Defendant Okwii Agbo’s Motion to Set Aside and Vacate Entry of Default is DENIED.
This is an action for breach of contract. The Complaint alleges as follows. Plaintiff Bigginslaw, Inc. (“Bigginslaw”) entered into an agreement with Defendants Odinamba Cultural Association, Inc. (“Odinamba”) and Okwii Agbo (“Agbo”) whereby Bigginslaw would provide professional services and Defendants would provide payment. (Compl. BC-1.) Defendants have failed to pay the outstanding balance of $39,997. (Comp. BC-2.)
On June 24, 2016, Plaintiff filed a complaint against Defendants, alleging two causes of action:
Breach of contract
On September 28, 2016, the Court entered default against Agbo.
On November 14, 2016, the Court entered judgment against Agbo in the amount of $43,081.46, and Plaintiff dismissed Defendant Odinamba from the case.
On December 27, 2019, Agbo filed the instant motion to set aside and vacate the default entered against him.
On February 24, 2020, Plaintiff filed an opposition to the instant motion.
No Reply has been filed.
Agbo moves for an order vacating and setting aside the default, default judgment, and any writs or liens entered against her in this action. (motion
Agbo does not identify the statute under which she moves for default but argues that the default is “void on its face” because a personal judgment without service of process is void. (Motion at pp. 5-6, citing City of Los Angeles v. Morgan (1951) 105 Cal.App.2d 726, 730-731.)
The Court entered default against Agbo on September 28, 2016. The entry of default terminated Agbo’s “rights to take any further affirmative steps in the litigation until either [his] default is set aside or a default judgment is entered. [Citations]” (Devlin v. Kearny Mesa Amc/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385.) “‘A defendant against whom a default has been entered is out of court and is not entitled to take any further steps in the cause affecting plaintiff's right of action; he cannot thereafter, until such default is set aside in a proper proceeding, file pleadings or move for a new trial or demand notice of subsequent proceedings.’ [Citation]” (Id. at 385-386.)
Agbo argues that the Complaint in this action was not properly served on her in 2016. (Motion at p. 6.) She contends that the process server did not “provide any facts in any declaration or proof of service showing that he knew Agbo prior to August 2016, or knew Agbo’s employment and usual place of business, or knew Agbo’s mailing address in August 2016” before substituting service. (Motion at p. 7.) Agbo further argues that the process server did not state in a declaration how he concluded that the recipient of the substitute service was the “Person in Charge of Office.” (Motion at p. 8.)
Agbo objects in two counts to the entire Declaration of Process Server filed on August 23, 2016. These objections are DENIED.
REQUEST FOR JUDICIAL NOTICE
Agbo requests judicial notice of: (1) the Court file and records in this case; and (2) all documents that constitute the judgment roll in this case.
Generally, a request for judicial notice “shall identify each separate document for which judicial notice is sought as a separate exhibit.” (Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 31.) It is not clear to the Court which records of the Court are considered “the Court file and records in this case” nor “the judgment roll” without Agbo listing and attaching each specific document for the Court’s review.
For the Court to grant judicial notice, the requesting party must “(b) Furnish the court with sufficient information to enable it to take judicial notice of the matter.” (Evid. Code, § 453.)
Accordingly, the Requests for Judicial Notice are DENIED.
RELIEF FROM DEFAULT JUDGMENT
“Generally, a party who has not actually been served with summons has three avenues of relief from a default judgment. (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180.) The three options are: (1) Code of Civil Procedure section 473.5, subdivision (a); (2) “the party can show that extrinsic fraud or mistake exists, such as a falsified proof of service, and such a motion may be made at any time, provided the party acts with diligence upon learning of the relevant facts;” or (3) Code of Civil Procedure section 473, subdivision (d). (Id. at 180-182.)
Code of Civil Procedure § 473(d)
Code of Civil Procedure section 473, subdivision (d) states that: “The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc., § 473.)
The analysis pursuant to section 473, subdivision (d) “does not hinge on evidence: A void judgment's invalidity appears on the face of the record, including the proof of service.”(Trackman v. Kenney, supra, 187 Cal.App.4th at 181.) This means that the Court may not considee declarations stating, for example, that the defendant was not actually served or that another address would have been better. (Id. [“the trial court erred by considering the evidence”].)
“The filing of a proof of service creates a rebuttable presumption that the service was proper. However, the presumption arises only if the proof of service complies with the applicable statutory requirements.” (Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.)
Here, the Proof of Service states that a Process Server for One Legal, on August 3, 2016, served Agbo by substitute service on “Hera Bosinyan – Person in Charge of Office” at 5912 Santa Monica Blvd., Los Angeles, CA 90038. (Proof of Service, ¶¶ 5-7.) The process server also a filed a Declaration of Diligence declaring that personal service was attempted on August 1, 2016 and August 2, 2016 at the same business address but that Agbo was not in. (Proof of Service, p. 2.) Further, the process server served Agbo by mail on August 5, 2016. (Proof of Service, p. 3.)
In lieu of personal service, “a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address, other than a United States Postal Service post office box, with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left.” (Code Civ. Proc., § 415.20.) The “affidavit of the person making the service showing the time, place, and manner of service and facts showing that the service was made in accordance with this chapter. The affidavit shall recite or in other manner show the name of the person to whom a copy of the summons and of the complaint were delivered, and, if appropriate, his or her title or the capacity in which he or she is served, and that the notice required by Section 412.30 appeared on the copy of the summons served, if in fact it did appear.” (Code Civ. Proc., § 417.10.)
Here, the filed Proof of Service satisfies the requirements of section 417.10 and 415.20.
Agbo argues that Hera Bosinyan was a “temporary receptionist” at the time of service and not a “Person in Charge” of the office. (Agbo Decl. ¶ 5.) However, “Service must be made upon a person whose ‘relationship with the person to be served makes it more likely than not that they will deliver process to the named party.’” (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1203.) As the receptionist, it is more likely than not that Bosinyan would have delivered process to Agbo. Further, the process server made two previous attempts to personally serve Agbo, which satisfies the requirement of reasonable diligence. (Trackman v. Kenney, supra, 187 Cal.App.4th 175, 185.)
Although Agbo argues, citing Cocoran v. Arouh, that there is no evidence that the address served was her usual place of business, Cocoran held only that “It is crucial that a connection be shown between the address at which substituted service is effectuated and the party alleged to be served. (Corcoran v. Arouh (1994) 24 Cal.App.4th 310, 315.) In this case, Agbo’s familiarity with the secretary Bosinyan, and her admission that she worked at 5912 Santa Monica Blvd. several hours a month in her own declaration, confirm a connection between Agbo and the address served. (Agbo Decl. ¶¶ 2, 5.)
Thus, the Court finds that the Proof of Service is not deficient on its face.
Code of Civil Procedure § 473.5(a)
Code of Civil Procedure section 473.5, subdivision (a) states as follows:
“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.”
(Code Civ. Proc., § 473.5.)
Here, the Court entered default against Agbo on September 28, 2016. Agbo filed the instant Motion to Set Aside Default on December 27, 2019, more than three years after the entry of default. Further, Agbo declares in her own declaration that she became aware of the judgment against her around November 2018. (Agbo Decl. ¶ 7.) 180 days, pursuant to Code of Civil Procedure section 473.5, subd. (a)(ii), was May 30, 2019. Accordingly, Agbo’s motion is untimely and Agbo has failed to explain why she waited over a year after learning of the default to file the instant Motion.
Furthermore, Agbo has not established that she did not have actual notice of the lawsuit, nor that the alleged lack of service of process was not caused by her avoidance of service. (Code Civ. Proc., § 473.5(b)-(c).) Bigginslaw presents evidence of text messages from Agbo dated September 2016 acknowledging the action. (Biggins Decl., Exh. A [“Please I’ll need a 30 days extension of the law suit to respond”].)
Additionally, the Court’s records indicate that Agbo was evading service: personal service was attempted at Agbo’s home address on 6/30/16, 7/3/16, 7/6/16, 7/10/16, 7/13/16, 7/16/16, 7/19/16, 7/22/16, 7/25/16, and 7/28/16; and the records reflect that the door was either not answered despite hearing movement inside, or a minor child answered the door and reported than an adult was not home despite the fact that the process server heard adult voices in the background. (Brief Statement in Support of Req. for Default Judg., Exh. 3.)
Accordingly, Defendant Agbo’s Motion to Set Aside Default is DENIED.
Dated: August 3, 2020
Hon. Robert S. Draper
Judge of the Superior Court
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