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This case was last updated from Los Angeles County Superior Courts on 07/10/2021 at 03:52:06 (UTC).

DANIEL ESCOBAR VS. IVAN MATTHEWS

Case Summary

On 08/07/2012 DANIEL ESCOBAR filed a Civil Right - Other Civil Right lawsuit against IVAN MATTHEWS. This case was filed in Los Angeles County Superior Courts, Pasadena Courthouse located in Los Angeles, California. The Judges overseeing this case are C. EDWARD SIMPSON, LAURA A. MATZ, MARY THORNTON HOUSE and CURTIS A. KIN. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9939

  • Filing Date:

    08/07/2012

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Civil Right - Other Civil Right

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Pasadena Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

C. EDWARD SIMPSON

LAURA A. MATZ

MARY THORNTON HOUSE

CURTIS A. KIN

 

Party Details

Plaintiff

ESCOBAR DANIEL

Defendants

MATTHEWS IVAN

PET'S DELIGHT

SPRIGGS GAIL

DELIGHT PET'S

LEWIS LOUISE A. LAW OFFICE OF

Attorney/Law Firm Details

Plaintiff Attorneys

MEAGLIA RICHARD LAW OFFICE OF

MEAGLIA RICHARD LAW OFFICES OF

MEAGLIA RICHARD WILLIAM

Defendant Attorneys

LEWIS LOUISE A. LAW OFFICE OF

LEWIS LOUISE A. LAW OFFICES OF

SKLAR BRYAN EVAN

 

Court Documents

Writ of Execution - Writ of Execution (Riverside)

1/2/2019: Writ of Execution - Writ of Execution (Riverside)

Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest

3/14/2019: Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest

Application for Issuance of Writ of Execution, Possession or Sale

10/22/2020: Application for Issuance of Writ of Execution, Possession or Sale

Memorandum of Points & Authorities

1/22/2021: Memorandum of Points & Authorities

Notice of Motion

1/22/2021: Notice of Motion

Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW)

3/16/2021: Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW)

Memorandum of Points & Authorities

3/17/2021: Memorandum of Points & Authorities

Application for Issuance of Writ of Execution, Possession or Sale

5/29/2019: Application for Issuance of Writ of Execution, Possession or Sale

Writ of - WRIT OF WRIT RETURN (OLD WRIT)

5/29/2019: Writ of - WRIT OF WRIT RETURN (OLD WRIT)

Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest

11/20/2019: Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest

Other - - OTHER - RETURN ON REAL PROPERTY LEVY - ENFORCEMENT OF JUDGMENT

4/23/2020: Other - - OTHER - RETURN ON REAL PROPERTY LEVY - ENFORCEMENT OF JUDGMENT

Application for Issuance of Writ of Execution, Possession or Sale

5/14/2020: Application for Issuance of Writ of Execution, Possession or Sale

 

Docket Entries

  • 04/13/2021
  • DocketNotice of Ruling (Re: Motion to Set Aside Default and Default Judgment); Filed by DANIEL ESCOBAR (Plaintiff)

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  • 04/08/2021
  • Docketat 10:00 AM in Department E, Curtis A. Kin, Presiding; Hearing on Motion to Set Aside/Vacate Default and Default Judgment (CCP 473.5) - Held

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  • 04/08/2021
  • DocketMinute Order ( (Hearing on Motion to Set Aside/Vacate Default and Default Jud...)); Filed by Clerk

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  • 04/06/2021
  • DocketProof of Service (not Summons and Complaint); Filed by DANIEL ESCOBAR (Plaintiff)

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  • 04/05/2021
  • DocketProof of Service (not Summons and Complaint); Filed by DANIEL ESCOBAR (Plaintiff)

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  • 04/02/2021
  • Docketat 08:30 AM in Department E, Curtis A. Kin, Presiding; Hearing on Motion to Set Aside/Vacate Default and Default Judgment (CCP 473.5) - Not Held - Advanced and Continued - by Court

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  • 03/22/2021
  • DocketReply (Defendant's Reply to Plaintiff's Opposition to Defendant's Motion To Set Aside Default and Default Judgment); Filed by IVAN MATTHEWS (Defendant)

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  • 03/17/2021
  • DocketMemorandum of Points & Authorities; Filed by DANIEL ESCOBAR (Plaintiff)

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  • 03/16/2021
  • Docketat 1:30 PM in Department E, Curtis A. Kin, Presiding; Non-Appearance Case Review

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  • 03/16/2021
  • DocketCertificate of Mailing for ((Non-Appearance Case Review) of 03/16/2021); Filed by Clerk

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118 More Docket Entries
  • 09/21/2012
  • DocketAffidavit of Prejudice-Peremptory (FILED AGAINST JUDGE C. EDWARD SIMPSON ); Filed by Attorney for Defendant

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  • 09/21/2012
  • DocketAnswer; Filed by PET'S DELIGHT (Defendant); LEWIS, LOUISE A. LAW OFFICE OF (Legacy Party)

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  • 08/07/2012
  • DocketNotice of Case Management Conference

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  • 08/07/2012
  • DocketCivil Case Cover Sheet

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  • 08/07/2012
  • DocketComplaint Filed (1. Sexual Harassment 2. Gender Violence 3. Assault and Battery 4. Intentional Infliction of Emotion Distress ); Filed by Attorney for Plaintiff

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  • 08/07/2012
  • DocketSummons Filed; Filed by Attorney for Plaintiff

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  • 08/07/2012
  • DocketComplaint; Filed by DANIEL ESCOBAR (Plaintiff)

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  • 08/07/2012
  • DocketComplaint Filed

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  • 08/07/2012
  • DocketSummons (on Complaint); Filed by Richard William Meaglia (Attorney)

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  • 08/07/2012
  • DocketComplaint; Filed by DANIEL ESCOBAR (Plaintiff)

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Tentative Rulings

Case Number: GC049939    Hearing Date: April 8, 2021    Dept: E

MOTION TO SET ASIDE DEFAULT

AND DEFAULT JUDGMENT

Date: 4/8/21 (10:00 AM)

Case: Daniel Escobar v. Ivan Matthews et al. (GC049939)

TENTATIVE RULING:

Defendant Ivan Matthews’ Motion to Set Aside Default and Default Judgment is DENIED.

Defendant Matthews’ requests for judicial notice (“RJN”) as to Exhibits 1, 2, 4, 5, and 6 are GRANTED, but only for the existence of the documents, not the truth of the matters asserted therein. (Evid. Code § 452(d); Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-69.) Defendant Matthews’ requests for judicial note as to Exhibits 3 and 7 are GRANTED, pursuant to Evidence Code § 452(d).

Defendant Matthews seeks to set aside the default judgment entered on October 2, 2014 on the ground that plaintiff did not demonstrate reasonable diligence in attempting to personally serve Matthews before filing an application for publication under CCP § 415.50. Reasonable diligence “denotes a thorough, systematic investigation and inquiry conducted in good faith by the party or his agent or attorney [citations].” (Kott v. Superior Court (1996) 45 Cal.App.4th 1126, 1137-38.)

“[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, quoting Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) “Under section 473, subdivision (d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service.” (Ellard, 94 Cal.App.4th at 544.) “[A] default that is void on the face of the record when entered is subject to challenge at any time irrespective of lack of diligence in seeking to set it aside within the six-month period of section 473.” (Plotitsa v. Superior Court (1983) 140 Cal.App.3d 755, 761.)

On April 11, 2013, plaintiff filed an Application for Publication. (RJN Ex. 2.) In support of this application, plaintiff submitted the declaration of counsel, a private investigator, and process server. Counsel declared that the discovery responses of Matthews’ ex-wife, the now-dismissed co-defendant Gail Spriggs, contained a P.O. Box address for Matthews in San Dimas. (RJN Ex. 2 at Meaglia Decl. ¶ 5.) The discovery responses also contained an indication that Matthews’ last known address was in the Palm Springs area. (Id. ¶ 5.) Counsel mailed a letter and notice of acknowledgement to the address but received a notice from the Post Office indicating the letter was not deliverable. (Id. ¶ 8 & Exs. 1, 2.) Counsel requested a forwarding address from the Post Master. (Id. ¶ 9 & Ex. 4.)

Counsel also had Fidelity National Title Corporate perform a search for real property that may have been under the name of Matthews. (Id. ¶ 10 & Ex. 3.) This search yielded two additional addresses, 909 Alejo Vis #13 in Palm Springs and a mailing address of 72880 Fred Waring Drive in Palm Desert. (Id. ¶ 10.) Counsel hired a process server to serve Matthews at these two addresses. (Id. ¶ 11.) The Alejo Vis address was a vacant lot. (Id. ¶ 11.) The Fred Waring address was a vacant commercial property. (Id. ¶ 11.)

Counsel then had the process server perform a skip trace. (RJN Ex. 2 at Meaglia Decl. ¶ 12; RJN Ex. 2 at Demarr Decl., p. 1:28.) According to private investigator John Demarr, real property records yielded an address for Matthews located at 3125 Goldenrod Lane in Palm Springs. (RJN Ex. 2 at Demarr Decl., p. 2:3-5.) According to a Declaration of Non-Service, registered process server Surya Von Rosen attempted to serve the summons and Complaint in this action on Matthews seven times over the course of two weeks. (RJN Ex. 2 at Ex. B to Demarr Decl.) A landscaping crew on the property verified that Matthews lived at the Goldenrod Lane address. (Id.) Despite a vehicle in the driveway and lights on and noise inside the property, nobody answered the door. (Id.)

Matthews maintains that the declarations are based on hearsay. Hearsay, by itself, does not render the Court’s determination of the sufficiency of diligence invalid. (Rue v. Quinn (1901) 137 Cal. 651, 657; Allen v. Superior Court (1953) 41 Cal.2d 306, 309.)

While counsel relied on information from others in his declaration, plaintiff also included the declarations of John Demarr and Surya Von Rosen in support of the Application for Publication. Demarr’s declaration was based on personal knowledge. Demarr was a licensed private investigator, and his office ascertained the Goldenrod Lane address for Matthews through real property records. (RJN Ex. 2 at Demarr Decl., pp. 1:28, 2:3-5.) Von Rosen, a registered process server, declared “I failed to find Ivan Matthews or any information to allow further search” and then recounted the seven attempts at personal service. (RJN Ex. 2 at Ex. B to Demarr Decl., ¶ 3.) The Court notes that a proof of service containing a declaration from a registered process server invokes a presumption of valid service that must be overcome by the party seeking to defeat service of process. (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; see also Evid. Code § 647.) As a corollary, a declaration of non-service by a registered process server should also be afforded a presumption of reasonable diligence. Notably, defendant Matthews does not submit any declaration indicating that he never lived at the Goldenrod Lane address.

Based on the foregoing, the Court finds that the declarations plaintiff submitted in support of the Application for Publication demonstrated reasonable diligence in attempting to serve defendant Matthews.

Matthews also argues that the Court did not enter his default prior to entering default judgment. (RJN Ex. 6.) CCP § 585(c) provides that plaintiff may apply for default judgment after entry of default. Nevertheless, Matthews does not cite any case or statute indicating that default judgment cannot be entered unless default was previously entered against Matthews. Accordingly, the Court does not find that lack of prior entry of default requires the default judgment to be set aside.

Matthews also argues that the Affidavit of Publication filed on May 24, 2013 is obscured by a “cut out” of the summons and therefore cannot be verified. (RJN Ex. 4.) Nevertheless, the portions of the affidavit that are visible evidence that the summons was published in the Riverside County Record on April 25, 2013 and May 2, 9, and 16 of 2013, as ordered by the Court. (RJN Exs. 3, 4.) The Affidavit of Publication is sufficient.

Matthews contends that the Order of Publication required plaintiff to mail a copy of the summons and Complaint to him before expiration of the time prescribed for publication of the summons. (RJN Ex. 3.) Under CCP § 415.50(b), plaintiff was required to mail the summons and Complaint if plaintiff ascertained defendant’s address. On the face of the record, and as confirmed by counsel in the opposition (Meaglia Decl. in Support of Opposition ¶ 4), plaintiff never obtained any address other than those where he attempted personal service. Therefore, mailing of the summons and Complaint after entry of the Order for Publication was not required.

Matthews also contends that the court file does not reflect that the statement of damages was ever mailed to him. (RJN Ex. 5.) No statute or the Order for Publication required plaintiff to mail the statement of damages to Matthews. Moreover, the statement of damages was published. (RJN 5.) A plaintiff is not required to obtain a separate court order for the publication for the statement of damages. (Anastos v. Lee (2004) 118 Cal.App.4th 1314, 1317-18.)

The face of the record shows that plaintiff complied with CCP § 415.50 in serving defendant by publication. “When substituted or constructive service is attempted, strict compliance with the letter and spirit of the statutes is required.” (Olvera v. Olvera (1991) 232 Cal.App.3d 32, 41.) Even with a strict compliance standard, the declarations plaintiff submitted in support of publication were sufficient. The default judgment shall not be set aside.

The motion is DENIED.

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