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This case was last updated from Los Angeles County Superior Courts on 04/20/2019 at 11:06:50 (UTC).

DONALD KIRK VS. USA PARKING SYSTEM, INC.,

Case Summary

On 03/29/2012 DONALD KIRK filed a Labor - Wrongful Termination lawsuit against USA PARKING SYSTEM, INC . This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judges overseeing this case are LAURA A. MATZ and JAN A. PLUIM. The case status is Disposed - Judgment Entered.

Case Details Parties Dockets

 

Case Details

  • Case Number:

    ****9177

  • Filing Date:

    03/29/2012

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Labor - Wrongful Termination

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Burbank Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

LAURA A. MATZ

JAN A. PLUIM

 

Party Details

Plaintiffs

KIRK DONALD

DONALD KIRK

Defendants

LEAL ANGEL

STEIN GREG

THE LANGHAM

USA PARKING SYSTEM INC.

DOES 1 TO 20

LANGHAM THE

ANGEL LEAL

GREG STEIN

Attorney/Law Firm Details

Plaintiff Attorneys

CONWAY JACK K.

CONWAY JACK K. ATTORNEY AT LAW

Defendant Attorneys

MATTHEW E. FARMER

FARMER MATTHEW E.

Court Documents

Court documents are not available for this case.

 

Docket Entries

  • 02/19/2014
  • Judgment; Filed by Donald Kirk (Plaintiff)

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  • 02/19/2014
  • Miscellaneous-Other; Filed by Donald Kirk (Plaintiff)

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  • 02/19/2014
  • Judgment; Filed by Donald Kirk (Plaintiff)

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  • 02/19/2014
  • Miscellaneous-Other (AMENDMENT TO COMPLAINT TO CORRECT FIRST NAME OF PLAINTIFF ); Filed by Attorney for Plaintiff

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  • 02/19/2014
  • Judgment; Filed by Attorney for Plaintiff

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  • 02/07/2014
  • at 08:30 AM in Department E; Default Prove Up Hearing

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  • 02/06/2014
  • Request; Filed by Donald Kirk (Plaintiff)

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  • 02/06/2014
  • Memorandum of Costs; Filed by Attorney for Plaintiff

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  • 02/06/2014
  • Declaration; Filed by Donald Kirk (Plaintiff)

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  • 02/06/2014
  • Memorandum of Costs; Filed by Donald Kirk (Plaintiff)

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60 More Docket Entries
  • 06/28/2012
  • Miscellaneous-Other; Filed by KIRK DONALD (Plaintiff)

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  • 06/28/2012
  • Miscellaneous-Other; Filed by KIRK DONALD (Plaintiff)

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  • 06/28/2012
  • Proof-Service/Summons; Filed by KIRK DONALD (Plaintiff)

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  • 06/28/2012
  • Miscellaneous-Other; Filed by KIRK DONALD (Plaintiff)

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  • 06/28/2012
  • Miscellaneous-Other (AFFIDAVIT OF REASONABLE DILIGENCE SERVICE ON GREG STEIN ); Filed by Attorney for Plaintiff

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  • 06/28/2012
  • Miscellaneous-Other; Filed by KIRK DONALD (Plaintiff)

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  • 06/28/2012
  • Miscellaneous-Other (AFFIDAVIT OF REASONABLE DILIGENCE SERVICE ON ANGEL LEAL ); Filed by Attorney for Plaintiff

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  • 06/28/2012
  • Proof-Service/Summons; Filed by Attorney for Plaintiff

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  • 03/29/2012
  • Complaint Filed

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  • 03/29/2012
  • Complaint; Filed by KIRK DONALD (Plaintiff); Donald Kirk (Plaintiff)

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Tentative Rulings

Case Number: GC049177    Hearing Date: October 16, 2020    Dept: E

MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT AND QUASH SERVICE OF SUMMONS

Date: 10/16/20 (10:00 AM)

Case: Donald Kirk v. USA Parking System, Inc. et al. (GC049177)

TENTATIVE RULING:

Defendant Langham Hotels Pacific Corporation dba The Langham Huntington, Pasadena’s (“Langham”) UNOPPOSED Motion to Set Aside Default and Default Judgment and Quash Service of Summons is GRANTED.

Defendant Langham’s requests for judicial notice (“RJN”) as to Exhibits 1-3 and 9-11 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 Langham’s requests for judicial note as to Exhibits 4-8 and 12-14 are GRANTED, pursuant to Evidence Code § 452(d).

Defendant Langham seeks to set aside the default entered on January 8, 2013 and the default judgment entered on February 19, 2014, and to quash plaintiff’s service of summons and complaint. (RJN Exs. 4, 8.)

The proof of service of summons filed on June 28, 2012 states that defendant The Langham, a corporation, was personally served the summons and complaint on June 26, 2012 at 4:12 p.m. The purportedly registered process server, David Hernandez of A Plus Legal Service, stated that he served Luna Gallik, an HR Coordinator, who was purportedly authorized to accept service of process, at 1401 South Oak Knoll Ave., Pasadena, CA 91106.

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. (See Evid. Code § 647.) According to the Los Angeles County Registrar-Recorder/County Clerk, Hernandez was not a registered process server in Los Angeles County on June 26, 2012. (Riegel Decl. ¶ 4 & Ex. C.) Accordingly, plaintiff is not entitled to a presumption of valid service.

Even if Hernandez were a registered process server, Gallik was not authorized to accept service of process on behalf of defendant Langham. (Wilsek Decl. ¶ 3; CCP § 416.10(a) [summons may be served on corporation by delivering copy of summons and complaint to person designated as agent for service of process].) Nor was Gallik “president, chief executive officer, or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a controller or chief financial officer, a general manager” of defendant Langham. (Wilsek Decl. ¶ 3; CCP § 416.10(b).) Although CCP § 415.20(a) allows for substitute service of the summons and complaint on a corporation by leaving a copy of the summons and complaint with a “person who is apparently in charge” of the office of the corporation, substitute service requires mailing of the summons and complaint thereafter. (CCP § 415.20(a).) The proof of service of summons does not indicate that any such mailing took place. Accordingly, neither personal service under CCP § 416.10 nor substitute service under CCP § 415.20(a) was effectuated in this matter as to defendant Langham.

“[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; CCP §473(d) [“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”].)

“When a defendant challenges [personal] jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439-40.) Because plaintiff did not file an opposition, plaintiff has not met his burden to establish the Court’s jurisdiction. Thus, because plaintiff did not comply with CCP § 416.10 or CCP § 415.20(a) to effectuate valid service on defendant Langham, the default and default judgment are void due to lack of personal jurisdiction over defendant.

Further, counsel for plaintiff, Jack K. Conway, was suspended from the practice of law as of August 30, 2013. (RJN Ex. 6.) Accordingly, during the default prove-up hearing on February 7, 2014, Conway was unable to represent plaintiff. A court has the “inherent equity power under which it may grant relief from a default judgment where there has been extrinsic fraud or mistake.” (Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 737.) “[T]he terms ‘fraud’ and ‘mistake’ have been given a broad meaning by the courts and tend to encompass almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing. The term ‘extrinsic’ refers to matters outside of the issues framed by the pleadings, or the issues adjudicated.” (Aldrich, 170 Cal.App.3d at 738.) Here, defendant was deprived of a fair adversary hearing because it was not properly served, did not have actual notice of this action, and did not have notice that an attorney engaged in the unauthorized practice of law was litigating against defendant.

To set aside a judgment based on extrinsic fraud or mistake, the defaulting party must: (1) demonstrate a meritorious defense, (2) state a satisfactory excuse for not presenting a defense in the original action, and (3) show diligence in seeking to set aside the default upon discovery. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 982, citing Stiles v. Wallis (1983) 147 Cal.App.3d 1143, 1147–48 and In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1071.)

Defendant Langham presents a meritorious defense. Plaintiff alleges in the complaint that he was terminated on September 22, 2008. (Compl. ¶ 8.) The complaint was filed on March 29, 2012, outside the one-year statute of limitations under the Fair Employment and Housing Act (Gov. Code §§ 12960(e), 12965(b)) and the two-year statute of limitations for wrongful termination (CCP § 335.1; Prue v. Brady Company/San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1382).

Defendant Langham presents undisputed evidence that it did not discover the existence of this action or the judgment until June 19, 2020, when plaintiff’s counsel Conway spoke with defendant’s Senior Human Resources Manager Eladio Giron and apprised him of the default judgment. (Giron Decl. ¶ 2.) Prior to June 19, 2020, defendant Langham did not receive any correspondence, filings, notices, demands, or any other documents relating to this action. (Giron Decl. ¶ 4; Wilsek Decl. ¶ 2.) Accordingly, defendant presents a satisfactory excuse for not having presented a defense before default was entered against it. Before entry of default and default judgment, defendant had no actual notice of the summons and complaint.

With respect to diligence, defendant filed this motion on June 18, 2020, two months after discovering the existence of this action and the judgment against it.

Accordingly, the default and default judgment shall be set aside due to extrinsic fraud or mistake.

The motion is GRANTED. The default entered against defendant The Langham, a corporation, on January 8, 2013 and the default judgment entered against defendant The Langham, a corporation, on February 14, 2014 are SET ASIDE. The service of summons and complaint on defendant The Langham, a corporation, as reflected in the proof of service of summons filed on June 28, 2012, is QUASHED.

Pursuant to CCP § 473(c)(1), a penalty of $1,000 is imposed against attorney Jack K. Conway, payable to the Clerk of the Court within thirty (30) days hereof. Pursuant to CCP § 473(c)(1)(B), attorney Conway is ordered to pay $1,000 to the State Bar Client Security Fund within thirty (30) days hereof. Pursuant to CCP § 473(c)(1)(C), the Court awards defendant Langham attorney fees for 15 hours (instead of the 25.5 hours claimed) at a blended hourly rate of $425. Plaintiff Douglas Kirk and attorney Jack K. Conway are jointly and severally liable to pay $6,375 to defendant Langham’s counsel within thirty (30) days hereof.

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