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This case was last updated from Los Angeles County Superior Courts on 07/02/2019 at 01:21:02 (UTC).

GRACE DUNCAN VS CLIFFORD LAWRENCE ET AL

Case Summary

On 10/06/2015 GRACE DUNCAN filed a Property - Other Real Property lawsuit against CLIFFORD LAWRENCE. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is GAIL FEUER. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6774

  • Filing Date:

    10/06/2015

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Real Property

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

GAIL FEUER

 

Party Details

Plaintiff and Petitioner

DUNCAN GRACE

Defendants and Respondents

ALL PERSONS CLAIMING BY THROUGH OR UND-

HOLLINGER KATHLEEN

LAWRENCE ANTHONY

LAWRENCE CLIFFORD

RUGLEY BESSIE I

TESTATE AND INTESTATE SUCCESSORS OF WILL-

RUGLEY BESSIE I.

WILEY [DOE 1] DEBORAH

ALL PERSONS CLAIMING BY THROUGH OR UNDER SUCH PERSON NAMED HEREIN AS DOES 1 TO 10

THE TESTATE AND INTESTATE SUCCESSORS OF WILLIAM LAWRENCE DECEASED

LAWRENCE KAREN

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

GAUGH KENNETH ESQ.

GAUGH KENNETH

Defendant and Respondent Attorneys

JOHNSON-PARKER JONNIE H. ESQ.

ALLEN CARLA D.

JOHNSON-PARKER JONNIE H.

 

Court Documents

EX PARTE APPLICATION FOR COURT ORDER TO HAVE CLERK OF THE COURT SIGN AMENDED ESCROW INSTRUCTIONS TO RELEASE PROSPECTIVE BUYER'S FUNDS WITH WEST TOWER ESCROW

4/3/2018: EX PARTE APPLICATION FOR COURT ORDER TO HAVE CLERK OF THE COURT SIGN AMENDED ESCROW INSTRUCTIONS TO RELEASE PROSPECTIVE BUYER'S FUNDS WITH WEST TOWER ESCROW

COURT ORDER INSTRUCTING CLERK OF THE COURT TO SIGN AMENDED ESCROW INSTRUCTION ON BEHALF OF NON-APPEARING DEFENDANTS TO RELEASE FUNDS

4/9/2018: COURT ORDER INSTRUCTING CLERK OF THE COURT TO SIGN AMENDED ESCROW INSTRUCTION ON BEHALF OF NON-APPEARING DEFENDANTS TO RELEASE FUNDS

Minute Order

6/5/2018: Minute Order

Minute Order

9/5/2018: Minute Order

Minute Order

4/18/2019: Minute Order

PROOF OF SERVICE OF SUMMONS

3/15/2016: PROOF OF SERVICE OF SUMMONS

NOTICE RE: CONTINUANCE OF HEARING

5/11/2016: NOTICE RE: CONTINUANCE OF HEARING

PROOF OF SERVICE SUMMONS

5/13/2016: PROOF OF SERVICE SUMMONS

Minute Order

5/23/2016: Minute Order

CASE MANAGEMENT ORDER

7/14/2016: CASE MANAGEMENT ORDER

CASE MANAGEMENT STATEMENT

10/14/2016: CASE MANAGEMENT STATEMENT

MEDIATION STATEMENT FOR DEFENDANTS CLIFFORD LAWRENCE ESTATE OF WILLIAM LAWRENCE

2/15/2017: MEDIATION STATEMENT FOR DEFENDANTS CLIFFORD LAWRENCE ESTATE OF WILLIAM LAWRENCE

Minute Order

2/22/2017: Minute Order

PROOF OF SERVICE OF SUMMONS

2/22/2017: PROOF OF SERVICE OF SUMMONS

DECLARATION RE: FRACTIONAL OWNERSHIP INTERESTS IN PARTION SUBJECT REAL PROPERTY.

3/17/2017: DECLARATION RE: FRACTIONAL OWNERSHIP INTERESTS IN PARTION SUBJECT REAL PROPERTY.

REQUEST FOR ENTRY OF DEFAULT

3/20/2017: REQUEST FOR ENTRY OF DEFAULT

Minute Order

3/20/2017: Minute Order

NOTICE OF SETTLEMENT OF ENTIRE CASE

3/20/2017: NOTICE OF SETTLEMENT OF ENTIRE CASE

52 More Documents Available

 

Docket Entries

  • 05/22/2019
  • at 08:30 AM in Department 78; Status Conference - Held - Continued

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  • 05/22/2019
  • Minute Order ( (Status Conference)); Filed by Clerk

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  • 04/18/2019
  • at 08:30 AM in Department 78; Status Conference - Held - Continued

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  • 04/18/2019
  • Minute Order ( (Status Conference)); Filed by Clerk

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  • 12/14/2018
  • at 08:30 AM in Department 78; Status Conference - Held - Continued

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  • 12/14/2018
  • Minute Order ((Status Conference)); Filed by Clerk

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  • 10/15/2018
  • Substitution of Attorney; Filed by Carla D. Allen (Attorney)

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  • 09/05/2018
  • at 08:30 AM in Department 78; Status Conference - Held - Continued

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  • 09/05/2018
  • Minute Order

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  • 09/05/2018
  • Minute order entered: 2018-09-05 00:00:00; Filed by Clerk

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135 More Docket Entries
  • 02/24/2016
  • NOTICE OF CONTINUED CASE MANAGEMENT CONFERENCE AND OSC RE: PROOFS OF SERVICE

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  • 02/03/2016
  • at 08:30 AM in Department 78; Case Management Conference (Conference-Case Management; Continued by Court) -

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  • 02/03/2016
  • Minute order entered: 2016-02-03 00:00:00; Filed by Clerk

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  • 02/03/2016
  • Minute Order

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  • 01/29/2016
  • CASE MANAGEMENT STATEMENT

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  • 10/09/2015
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 10/08/2015
  • Notice of Case Management Conference; Filed by Clerk

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  • 10/06/2015
  • SUMMONS

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  • 10/06/2015
  • Complaint; Filed by Grace Duncan (Plaintiff)

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  • 10/06/2015
  • COMPLAINT FOR PARTITION

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Tentative Rulings

Case Number: BC596774    Hearing Date: June 26, 2020    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

grace duncan;

Plaintiff,

vs.

clifford lawrence, et al.;

Defendants.

Case No.:

BC596774

Hearing Date:

June 26, 2020

[tentative] ruling re:

MOTION TO QUASH SERVICE AS TO The Estate of Bessie Rugley

MOTION TO QUASH SERVICE AS TO The Estate of Grady Lawrence

The Motions to Quash are CONTINUED to September 17, 2020 for the Moving Defendants to file a supplementary brief. The Plaintiff may also file a responsive brief. The briefing schedule is as follows: Defendants’ supplemental briefs must be filed by September 1, 2020 and any responsive brief by Plaintiff must be filed by September 10. 2020.

FACTUAL ALLEGATIONS

This is an action for partition. The Complaint alleges as follows. Plaintiff Grace Duncan (“Duncan”) is the owner of an undivided 1/18th of real property, which is co-owned by Defendants Clifford Lawrence (“Lawrence”), Bessie Rugley (“Rugley”), Anthony Lawrence as Administrator of the Estate of Grady Lawrence, Kathleen Hollinger as Administrator of the Estate of Rosebud McCoy, and the Testate and Intestate Successors of Decedent William Lawrence. (Compl. ¶ 3.) Duncan seeks partition by sale of the property for the common benefit of the parties to preserve and secure to each his/her respective interest. (Compl. ¶ 12.)

procedural history

Duncan filed the Complaint on October 6, 2015, alleging a single cause of action for partition.

On March 2, 2016, Defendant Clifford Lawrence filed an Answer to the Complaint.

On May 13, 2016, the Court entered default against Defendant Bessie Rugley.

On October 17, 2016, the Court entered default against Defendants Anthony Lawrence as Administrator of the Estate of Grady Lawrence and Kathleen Hollinger as Administrator of the Estate of Rosebud McCoy.

On December 29, 2016, Defendant Karen Lawrence, Administrator for the Estate of William Lawrence filed an Answer to the Complaint.

On March 20, 2017, the Court entered default against Defendant Deborah Wiley.

On May 5, 2017, the Court entered an interlocutory judgment following a mandatory settlement conference. The Court decreed the parties’ (including the Moving Defendants’) respective interests in the real property and that the parties agreed to the sale of the property and division of the proceeds in accordance with their respective interests.

On September 5, 2017, the Court entered an amended interlocutory judgment.

On April 9, 2018, the Court ordered the Clerk of the Court to sign amended escrow instructions on behalf of the non-appearing defendants (The Estate of Rosebud McCoy, the Estate of Grady Lawrence, and Bessie Rugley) to release funds.

On May 22, 2019, at status conference, the parties represented that the parties executed a settlement agreement and the parties are waiting for the deeds to be signed.

On December 4, 2019, the parties represented that they are still working to clear the title.

On December 17, 2019, the Moving Defendants (Anthony Lawrence and Deborah Wiley) filed the instant Motions to Quash Service.

No Oppositions have been filed.

DISCUSSION

  1. MOTION TO VACATE DEFAULT

Specially appearing Defendants Deborah Wiley (“Wiley”), Bessie Rugley (“Rugley”), Anthony Lawrence Administrator of Estate of Grady Lawrence (“Lawrence,” collectively, the “Moving Defendants”) argue that they did not receive proper service of the Complaint in this action. (Motions at p. 3.) Wiley and Rugley contend that they did not become aware of the action until November 30, 2019, and Lawrence contends that he did not become aware of the action until December 2019. (Wiley Motion at p. 3; Lawrence Motion at p. 3.)

Civil Code of Procedure section 473.5 states:

(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.

Code Civ. Proc., § 473.5

The Court entered default against Defendant Bessie Rugley on May 13, 2016, Anthony Lawrence as Administrator of the Estate of Grady Lawrence on October 17, 2016, and Deborah Wiley on March 20, 2017. “The entry of a default terminates a defendant's rights to take any further affirmative steps in the litigation until either its default is set aside or a default judgment is entered.” (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385.)

Here, the Moving Defendants have filed Motions to Quash Service of Summons. However, because this Court has entered default against the Moving Defendants, the Moving Defendants are “out of court” and “not entitled to take any further steps in the cause affecting plaintiff's right of action[.]” (Id. at 385-386.) Accordingly, the Defendants in this case are not entitled to file the instant pleading until the “default is set aside in a proper proceeding[.]” (Id. at 386.)

On the face of it, even if this Court were to consider the instant Motions to Quash as Motions to Set Aside Default, the Motions are untimely. The moving defendants were required to file the instant motions within two years after entry of default. (Code Civ. Proc. § 473.5(a).) Here, both Motions were filed on December 17, 2019, more than two years after entry of default for all Moving Defendants.

However, a court has inherent power to set aside a judgment obtained by fraud upon it. (In re Marriage of Smith (1982) 135 Cal.App.3d 543, 555.) Fraud may consist in filing a false return of service. (Id.)

To set aside a judgment based on extrinsic fraud or extrinsic mistake, the moving party must satisfy three elements: “First, the defaulted party must demonstrate that it has a meritorious case. Secondly, the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Lastly, the moving party must demonstrate diligence in seeking to set aside the default once it had been discovered.” (Moghaddam v. Bone (2006) 142 Cal.App.4th 283, 290–291 citing Stiles v. Wallis (1983) 147 Cal.App.3d 1143, 1148.)

Here, while the Moving Defendants have offered evidence on the second and third elements set out in Modghaddam, they have not offered any evidence on the first element of to demonstrate that they have a meritorious case.

Accordingly, the Motions to Quash are CONTINUED until September 17, 2020 for the Moving Defendants to file supplemental brief on the first element discussed above. The Plaintiff may also file a responsive brief.

Moving Defendants to give notice.

DATED: June 26, 2020

________________________________

Hon. Robert S. Draper

Judge of the Superior Court

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