On 06/24/2009 IAN CAMPBELL filed a Contract - Debt Collection lawsuit against PYLE IRREVOCABLE TRUST. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are AURELIO MUNOZ, DEBRE K. WEINTRAUB and RANDOLPH M. HAMMOCK. The case status is Disposed - Other Disposed.
Disposed - Other Disposed
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
DEBRE K. WEINTRAUB
RANDOLPH M. HAMMOCK
PYLE IRREVOCABLE TRUST
MENDOZA JOSE A. ESQ.
NACHIMSON ESQ BENJAMIN SETH
DELL LOUIS P
12/17/2009: REQUEST FOR ENTRY OF DEFAULT
7/29/2011: Minute Order -
11/10/2011: STATUS REPORT FOR CNIC NEARING ON NOVEMBER 17, 2011
5/31/2012: NOTICE RE: CONTINUANCE OF HEARING
5/31/2012: NOTICE RE: CONTINUANCE OF HEARING
11/14/2012: Minute Order -
12/2/2013: Minute Order -
11/21/2014: STATUS REPORT FOR CMC HEARING ON DECEMBER 4, 2014
11/24/2014: NOTICE RE: CONTINUANCE OF HEARING
1/6/2015: STATUS REPORT FOR CMC HEARING ON JANUARY 21, 2015
2/29/2016: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO WITHDRAW
4/1/2016: NOTICE OF CONTINUANCE OF HEARING ON MOTION TO WITHDRAW
5/31/2016: Minute Order -
DocketMemorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest; Filed by Ian Campbell (Plaintiff)Read MoreRead Less
DocketNotice of Ruling; Filed by Ian Campbell (Plaintiff)Read MoreRead Less
Docketat 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Hearing on Motion to Set Aside/Vacate Default and Default Judgment (CCP 473.5) - Held - Motion DeniedRead MoreRead Less
DocketFinal Ruling - Motion to Vacate Default and Default Judgment; Filed by ClerkRead MoreRead Less
DocketMinute Order ( (Hearing on Motion to Set Aside/Vacate Default and Default Jud...)); Filed by ClerkRead MoreRead Less
DocketReply (In Support of Motion to Vacate); Filed by Pyle Irrevocable Trust (Defendant); Glen Pyle (Defendant)Read MoreRead Less
DocketReply (PLAINTIFF?S SUR-REPLY TO DEFENDANTS THE PYLE IRRECOVABLE TRUST AND GLEN PYLE MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT); Filed by Ian Campbell (Plaintiff)Read MoreRead Less
DocketOpposition (to the Motion of Defendants The Pyle Irrevocable Trust and Glen Pyle to Vacate Default and Default Judgment; Declaration of Benjamin Nachimson in Support Thereof); Filed by Ian Campbell (Plaintiff)Read MoreRead Less
DocketNotice (Hearing on Motion to Vacate); Filed by Pyle Irrevocable Trust (Defendant); Glen Pyle (Defendant)Read MoreRead Less
DocketProof of Service by Mail; Filed by Pyle Irrevocable Trust (Defendant); Glen Pyle (Defendant)Read MoreRead Less
DocketSTATUS CONFERENCE ORDERRead MoreRead Less
DocketCase Management Statement; Filed by Ian Campbell (Plaintiff)Read MoreRead Less
DocketCASE MANAGEMENT STATEMENTRead MoreRead Less
DocketPROOF OF SERVICE SUMMONS & COMPLAINTRead MoreRead Less
DocketProof of Service (not Summons and Complaint); Filed by Ian Campbell (Plaintiff)Read MoreRead Less
DocketNotice of Case Management Conference; Filed by ClerkRead MoreRead Less
DocketNOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
DocketCOMPLAINT FOR: 1. BREACH OF CONTRACT; ETC.Read MoreRead Less
DocketComplaint; Filed by Ian Campbell (Plaintiff)Read MoreRead Less
DocketSUMMONSRead MoreRead Less
Case Number: BC416442 Hearing Date: September 21, 2020 Dept: 47
Ian Campbell v. Glen Pyle, Trustee of the Pyle Irrevocable Trust, et al.
GIVEN THE CURRENT CORONAVIRUS CRISIS, THE COURT STRONGLY ENCOURAGES REMOTE APPEARENCES BY “LACourtConnect.” PLEASE MAKE SUCH ARRANGEMENTS IF YOU WISH TO APPEAR REMOTELY AT WWW.LACOURT.ORG/LACC/. NO OTHER TYPES OF REMOTE APPEARANCES ARE AVAILABLE FOR THIS PARTICULAR COURTROOM, INCLUDING COURT CALL. IF YOU APPEAR IN PERSON AT THE HEARING, YOU WILL BE SUBJECT TO ALL SOCIAL DISTANCING RULES, INCLUDING THE WEARING OF AN APPROPRIATE FACE MASK/COVERING (ABSENT ANY EXCEPTIONAL CIRCUMSTANCES) AS CONTAINED IN THE APPLICABLE GENERAL ORDERS ISSUED BY THE PRESIDING JUDGE OF THE L.A.S.C
MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT
MOVING PARTY: Former Defendants the Pyle Irrevocable Trust and Glen Pyle
RESPONDING PARTY(S): Mary Casamento as Successor Trustee of the Ian Campbell Revocable Trust dated August 12, 2011, for Plaintiff Ian Campbell (deceased)
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
This was a breach of contract action. Plaintiff alleged that he loaned money to the defendant trust that Defendants never paid back.
Defendants move to vacate the default and default judgment against them.
Defendants the Pyle Irrevocable Trust and Glen Pyle’s motion to vacate default and default judgment is DENIED.
Motion To Vacate Default and Default Judgment
The Court first notes that there is no basis in the Code or in the California Rules of Court for a surreply, except when the Court has ordered additional briefing. Therefore, Plaintiff’s surreply has not been considered.
It is a maxim of jurisprudence that “[t]he law helps the vigilant, before those who sleep on their rights.” (Civil Code §3527) As will be discussed below, the Defendants not only slept on their rights, they were in a self-induced coma.
On August 27, 2010, defaults were entered as to Defendants The Pyle Irrevocable Turst and Glen Pyle. On September 6, 2018, default judgment was entered as to both Defendants. Defendants now move to vacate the defaults and default judgment pursuant to CCP § 473(d), which provides that the Court “may, . . . on motion of either party after notice to the other party, set aside any void judgment or order.” (CCP § 473(d).)
Defendants argue that the judgment is void because (1) it was entered in violation of an automatic bankruptcy stay; and (2) service of process was not valid.
Plaintiff argues that the Court lacks jurisdiction to hear the motion because Defendants are in default and therefore Defendants may only file a “motion for relief from default.” (Oppo., at p. 3.) That is what Defendants have done here, even if there are other reasons that it must be denied. They are seeking to set aside both the default and the default judgment. As discussed below in connection with service of process, there are valid reasons for the Court to hear this motion, especially when the Court could consider these issues on its own motion.
Purported Violation of Automatic Bankruptcy Stay
Defendants have cited only federal authority in support of the proposition that an order entered in violation of an automatic bankruptcy stay is void. In fact, the Court of Appeal has recognized, contemporaneously with the federal cases Defendants cite, that there is a “growing weight of authority in the bankruptcy arena in support of the proposition that an order taken in violation of the automatic stay is not absolutely void but is voidable.” (Shorr v. Kind (1991) 1 Cal.App.4th 249, 257.)
Even if Defendants were correct, however, that an order entered in violation of the bankruptcy stay is automatically void, no such order was entered in this case. Defendant Glen Pyle filed bankruptcy on November 30, 2010. (Reply, at p. 5.) The defaults had already been entered on August 27, 2010. Therefore, the defaults were not entered in violation of the automatic stay, and Defendant disavows that he is making a renewed application for relief from default on the ground that the Court had given him until December 15, 2010 to renew his motion and the automatic stay began November 30, 2010. In any event, both defaults were entered well before the automatic stay was in place.
Likewise, the entry of default judgment occurred after the stay was lifted. Default judgment was entered on September 6, 2018. The automatic stay had already been lifted as to this case on January 30, 2018. (Declaration of Benjamin Nachimson ¶ 7 & Exh. D.) Thus, the entry of default judgment occurred after the stay had been lifted specifically to allow this action to continue.
Accordingly, the defaults and default judgment are not void on the ground that they were entered in violation of the automatic bankruptcy stay.
Purportedly Invalid Service of Process
Defendants also argue that the defaults and default judgment are void because service of process was not valid.
An order entering default against a defendant who has not been properly served is a void order, subject to direct attack at any time. (County of San Diego v. Gorham (2010) 186 Cal App.4th 1215, 1226.) Likewise, “a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute [to establish personal jurisdiction] is void.” (Id. at 1227 (citation omitted).) “[O]n direct attack, lack of jurisdiction may be shown by extrinsic evidence, i.e., evidence outside the judgment roll.” (Id. at 1228 (citation omitted.)) “Moreover, even where relief is no longer available under statutory provisions, a trial court generally retains the inherent power to vacate a default judgment or order on equitable grounds where a party establishes that the judgment or order was void for lack of due process . . . or resulted from extrinsic fraud or mistake . . . .” (Ibid.) If “there has been a complete failure of service of process upon a defendant, he generally has no duty to take affirmative action to preserve his right to challenge the judgment or order even if he later obtains actual knowledge of it because ‘[w]hat is initially void is ever void and life may not be breathed into it by lapse of time.’” (Id. at 1229 (citation omitted).)
Here, according to the proofs of service in the Court file, Defendants were both served with the 1AC by substituted service on July 8, 2010, by leaving the papers with Mauricio Panchane, a salesperson, at 13107 ½ Lakewood Boulevard, Downey, CA 90242. (Proof of Service of Summons & Complaint, 7/14/10.) The documents were also mailed on that date. (Ibid.) That was the location of a business called Westco Realty, and the process server had tried three previous times to serve Defendants there. (Ibid.) Employees said they had “never heard of” Mr. Pyle, but he was listed as agent for the company on its website at the same address. (Ibid.) Service was accomplished by a registered California process server, and therefore the stated facts are presumed to be true. (Evid. Code § 647.)
CCP § 415.20(b), which governs substituted service on individuals, provides:
If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the 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. Service of a summons in this manner is deemed complete on the 10th day after the mailing.
(CCP § 415.20(b), bold emphasis added.)
Thus, if 13107 ½ Lakewood Boulevard was either Mr. Pyle’s “usual place of business” at the time of service or his “usual mailing address” and the other requirements for substituted service were met, service was proper. Defendant declares that Westco Realty listed him as an agent for a small fee, but that it did not have “executive suites, mailboxes, or conference rooms.” (Declaration of Glen Pyle ¶ 4.) He also indicates that he only sold real estate under Westco Realty’s name for “a few months in 2009” and never had an assigned address there or met clients there. (¶ 6.) He also indicates he only went to that location twice and that he never heard from Westco about any lawsuit filed against him. (¶¶ 7, 8.) Thus, Defendant has presented some evidence that 13107 ½ Lakewood Boulevard was not his “usual place of business” or his “usual mailing address” and that he did not receive notice of the lawsuit through that location. And if Defendant was no longer working there in July 2010, it cannot be considered his “usual place of business.” (Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1418 [finding service ineffective when defendant was served at a restaurant where she no longer worked, even though she had a community interest in it, and agreeing with the trial court that “the law would be an ass if it allowed this judgment to stand without the lady having her day in court”].)
At the same time, Defendant has not indicated that he did not receive actual notice of the lawsuit through other means. Nor has he indicated that he was never contacted about mail received on his behalf at Westco while he was listed as an agent there. Indeed, there is no doubt that Defendant had actual notice of the lawsuit less than four months after service of the 1AC was attempted in July 2010, because Defendant had filed a motion to set aside the defaults before the motion was heard on November 15, 2010. Indeed, Court records indicate that he was served with the notice of entry of default on August 26, 2010 at both the Lakewood address and the address that he indicates is his residence, 9466 Sunland Boulevard. (Pyle Decl. ¶ 2.)
“[S]trict compliance with statutes governing service of process is not required.” (Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 313.) Rather, “substantial compliance” is sufficient – “if actual notice has been received by the defendant.” (Ibid.) Here, Defendant had received notice at his residence address at least by August 26, 2010 by mail, less than a month after the service of the 1AC and well before either the entry of the automatic stay or the default judgment.
Accordingly, the motion to vacate default and default judgment is DENIED.
Plaintiff to give notice, unless waived.
IT IS SO ORDERED.
Dated: September 21, 2020 ___________________________________
Randolph M. Hammock
Judge of the Superior Court
Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.