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This case was last updated from Los Angeles County Superior Courts on 06/22/2019 at 09:11:45 (UTC).

JUSTICE BALDWIN, ET AL VS. HARRY CLEELAND AND DOES 1-10

Case Summary

On 09/17/2015 JUSTICE BALDWIN filed a Contract - Other Contract lawsuit against HARRY CLEELAND AND DOES 1-10. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are RUSSELL STEVEN KUSSMAN and ELIZABETH A. LIPPITT. The case status is Disposed - Judgment Entered.

Case Details Parties Dockets

 

Case Details

  • Case Number:

    ****3360

  • Filing Date:

    09/17/2015

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

RUSSELL STEVEN KUSSMAN

ELIZABETH A. LIPPITT

 

Party Details

Plaintiffs

BALDWIN JUSTICE

LONG BOBBI

Defendants

CLEELAND HARRY

DOES 1-10

DALTON RAY

DALTON BEVERLY

RICKELL MARTI

DALTON JR. GEORGE JAY (CORRECTED)

DALTON JR. GEORGE JAY CORRECTED

Not Classified By Court

DALTON GEORGE

Attorney/Law Firm Details

Plaintiff Attorney

KELLENER JOSEPH W. ESQ

Defendant Attorney

KERR CHRISTOPHER G.

Court Documents

Court documents are not available for this case.

 

Docket Entries

  • 12/24/2018
  • Abstract of Judgment - Civil and Small Claims; Filed by Justice Baldwin (Plaintiff)

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  • 01/08/2018
  • at 00:00 AM in Department W; Unknown Event Type

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  • 11/27/2017
  • Default Judgment; Filed by Justice Baldwin (Plaintiff); Bobbi Long (Plaintiff)

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  • 11/27/2017
  • Judgment; Filed by Attorney-Plaintiff

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  • 11/08/2017
  • Notice (OF CORRECTION OF COMPUTATION FOR JUDGMENT ); Filed by Attorney-Plaintiff

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  • 11/08/2017
  • Notice; Filed by Justice Baldwin (Plaintiff); Bobbi Long (Plaintiff)

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  • 11/07/2017
  • Notice-Reassignment and Order; Filed by Clerk

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  • 11/07/2017
  • Notice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

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  • 11/07/2017
  • Notice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

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  • 11/03/2017
  • at 08:30 AM in Department W; Default Prove Up Hearing (Hearing-Default Prove-up; Judgment-Granted) -

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177 More Docket Entries
  • 09/25/2015
  • Complaint-Amended (1st); Filed by Justice Baldwin (Plaintiff); Bobbi Long (Plaintiff)

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  • 09/25/2015
  • Summons; Filed by Justice Baldwin (Plaintiff); Bobbi Long (Plaintiff)

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  • 09/25/2015
  • Summons Filed (ON FIRST AMENDED COMPLAINT ); Filed by Attorney-Plaintiff

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  • 09/25/2015
  • Complaint-Amended (1st); Filed by Attorney-Plaintiff

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  • 09/17/2015
  • Summons; Filed by Justice Baldwin (Plaintiff); Bobbi Long (Plaintiff)

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  • 09/17/2015
  • Notice of Case Management Conference; Filed by Clerk

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  • 09/17/2015
  • Notice-Case Management Conference; Filed by Clerk

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  • 09/17/2015
  • Summons Issued; Filed by Attorney-Plaintiff

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  • 09/17/2015
  • Complaint; Filed by Justice Baldwin (Plaintiff); Bobbi Long (Plaintiff)

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  • 09/17/2015
  • Complaint; Filed by Attorney-Plaintiff

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Tentative Rulings

Case Number: LC103360    Hearing Date: August 31, 2020    Dept: W

baldwin, et al. v. cleeland, et al.

motion to set aside entry of default and default judgment and quash service of summons

Date of Hearing: August 31, 2020 Trial Date: N/A

Department: W Case No.: LC103360

Moving Party: Defendant Harry Cleeland

Responding Party: Plaintiffs Justice Baldwin and Bobbi Long

BACKGROUND

This action arises out of a wrongful eviction claim. Plaintiffs filed a complaint on September 17, 2015 against Defendants Harry Cleeland, Beverly Dalton, Ray Dalton, Marti Rickell, and George Dalton.

On November 27, 2017, default judgment was entered against Defendant Cleeland.

Defendant Cleeland now moves to set aside the entry of default and default judgment and quash service of summons on the grounds he did not receive actual notice.

[Tentative] Ruling

Defendant Harry Cleeland’s Motion to Set Aside Entry of Default and Default Judgment and Quash Service of Summons is DENIED.

DISCUSSION

Defendant Cleeland moves to set aside the entry of default and default judgment entered against him as well as quash the service of summons on the grounds that the service of summons on the third amended complaint or service of summons on any complaint before that did not result in actual notice to Defendant Cleeland.

The court has broad discretion to vacate the entry of default, default judgment or a dismissal, but that discretion can be exercised only if the defendant establishes a proper ground for relief, by the proper procedure and within the set time limits. Pursuant to Code of Civil Procedure section 473(b), a motion to set aside/vacate cannot be brought more than 6 months after the entry of default and must be made within a “reasonable time.” After expiration of the 6-month period, a defendant may obtain relief by showing “lack of notice” of the proceedings and relief must be sought within 2 years of the default judgment or 180 days after service of written notice that the default or default judgment has been entered, whichever is earlier. (CCP §473.5(a).) Defendant must show his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. (CCP §473.5(c).)

As acknowledged by Defendant Cleeland in his moving papers, his notice to set aside the default judgment and for leave to defendant the action is beyond the statutory time period. Default judgment was entered in this matter on November 27, 2017. Over two years later, on July 7, 2020, Defendant Cleeland moved to set aside the default judgment. Because Defendant Cleeland is beyond the statutory time frame, he urges the court use its  inherent, equitable power to set aside any judgment on the ground of extrinsic fraud or mistake. 

In order to obtain equitable relief on such grounds, the party against whom the judgment has been entered must show, in addition to extrinsic fraud or mistake, the defendant must demonstrate: (1) “a meritorious case”; (2) “a satisfactory excuse for not presenting a defense to the original action”; and (3) “diligence in seeking to set aside the default once the fraud [or mistake] had been discovered.” (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 982.) Regardless of whether Defendant has established the three factors required by Rappleyea, the court finds Defendant is not entitled to equitable relief for the simple reason that he has not established the threshold requirement of extrinsic fraud.

Extrinsic fraud is a broad concept that “tend[s] to encompass almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing.” (Marriage of Park (1980) 27 Cal.3d 337, 342.) This includes a default judgment obtained by a false proof of service. (See County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1229.) “When a judgment or order is obtained based on a false return of service, the court has the inherent power to set it aside [citation], and a motion brought to do so may be made on such ground even though the statutory period has run.” (Munoz v. Lopez (1969) 275 Cal.App.2d 178, 181.)

It seems it is Defendant’s position that the proof of services filed in this action were falsified because he was never actually served and none of the numerous proof of services filed establish he was served at his home. In Reply, he provides a copy of his Driver’s License which provides his address is on Wilbur Avenue, which is next door to where Plaintiffs were purportedly wrongfully evicted. Defendant also provides copies of the proof of services for the First Amended Complaint and Third Amended Complaint, which show he was served at a grocery store in Reseda and at a residence in Valencia.

In opposition, Plaintiffs state Defendant repeatedly avoided service. As such, they had to serve Defendant through logistical planning and detective work. (Kellener Decl. ¶9.) Moreover, Plaintiffs claim Defendant is asking the court to overlook the signed declaration of the process server and the proofs of service complies with all the statutory standards, which creates a rebuttal presumption that service was proper.

First, Defendant has not established the proof of service was falsified just because he was served at a grocery store. Defendant does not need to be personally served at his personal residence. Second, the fact that multiple proof of services were filed does not create any presumption that they were falsified. However, the court notes the proof of services to the First Amended Complaint and Third Amended Complaint were not served by process servers.[1] As such, Plaintiffs cannot rely on Evidence Code 647, which provides “[t]he return of a process server registered … upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.” (Evid. Code §647.) Nonetheless, “[i]t has been held that the filing of a proof of service creates a rebuttable presumption that the service was proper. However, that presumption arises only if the proof of service complies with the statutory requirements regarding such proofs.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441-42 (citations omitted).)

Code of Civil Procedure section 417.10 provides “by 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.” From the proof of services Defendant presented, they seem to comply with the statutory requirements. As such, Defendant has not sufficiently presented extrinsic fraud on part of the Plaintiffs.

As for the request to quash service of summons, the court denies Defendant’s motion to quash service as he filed the motion while in default. (See Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385-386 [“The entry of a default terminates a defendant's rights to take any further affirmative steps in litigation until either its default is set aside or a default judgment is entered. (Citation Omitted.) ‘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.’” (Citations Omitted.)].)

Based on the foregoing, Defendant Cleeland’s Motion to Set Aside Default and Default Judgment and Quash Service of Summons is DENIED.


[1] The First Amended Compaint’s proof of service indicates that it was personally served on September 26, 2015 on Mr. Cleeland at the Albertson’s located at 19307 Saticoy Street in Reseda by Brian Yosha, not a registered process server. The Third Amended Complaint was personally served on July 28, 2017 at 8:00 a.m. at 27208 Camden Place in Valencia by Bobby Earnhart, not a registered process server. In addition, Joseph Kellener stated under oath that on October 3, 2017 he mailed the Request for Entry of Default to Harry Cleeland at 7749 Wilbur Ave.. the address defendant Cleland acknowledges to be his home address. Request for Entry of Default as to the Second Amended Complaint was served by Mr. Kellener on December 7 and again on December 12, 2016 on Mr. Cleeland at the same address. Various requests for entry of default were served on Mr. Cleeland at the Wilbur Street address by Mr. Kellener in 2015 and 2016.

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