This case was last updated from Los Angeles County Superior Courts on 09/24/2015 at 00:36:57 (UTC).

WELLS FARGO BANK N A VS N DESAI

Case Summary

On 02/23/2009 WELLS FARGO BANK N A filed a Contract - Other Contract lawsuit against N DESAI. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are ROBERT S. HARRISON, JAMES R. DUNN, RUTH ANN KWAN, MATTHEW ST. GEORGE and ELIHU M. BERLE. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8173

  • Filing Date:

    02/23/2009

  • 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

ROBERT S. HARRISON

JAMES R. DUNN

RUTH ANN KWAN

MATTHEW ST. GEORGE

ELIHU M. BERLE

 

Party Details

Plaintiff

WELLS FARGO BANK NATIONAL ASSOCIATION

Defendants

DESAI N.

DESAI NARENDRA M.

DOES 1 THROUGH 20

Attorney/Law Firm Details

Plaintiff Attorney

SCHAUERMAN ANNE M. ESQ.

 

Court Documents

VERIFIED COMPLAINT FOR MONEY 1. GUARANTY; ETC.

2/23/2009: VERIFIED COMPLAINT FOR MONEY 1. GUARANTY; ETC.

ORDER TO SHOW CAUSE HEARING

3/3/2009: ORDER TO SHOW CAUSE HEARING

NOTICEOF CASE MANAGEMENT CONFERENCE

3/3/2009: NOTICEOF CASE MANAGEMENT CONFERENCE

Minute Order

4/24/2009: Minute Order

CASE MANAGEMENT STATEMENT

4/29/2009: CASE MANAGEMENT STATEMENT

MINUTE ORDER

5/26/2009: MINUTE ORDER

MINUTE ORDER

6/5/2009: MINUTE ORDER

Minute Order

6/19/2009: Minute Order

MINUTE ORDER

6/25/2009: MINUTE ORDER

NOTICE OF CASE MANAGEMENT CONFERENCE

7/24/2009: NOTICE OF CASE MANAGEMENT CONFERENCE

REQUEST FOR ENTRY OF DEFAULT

10/8/2009: REQUEST FOR ENTRY OF DEFAULT

JUDGMENT; BY COURT; BY DEFAULT

10/8/2009: JUDGMENT; BY COURT; BY DEFAULT

DECLARATION OF DANIELLE LABOSTRIE IN SUPPORT OF WELLS FARGO BANK, NATIONAL ASSOCIATIONS REQUEST FOR ENTRY OF DEFAULT JUDGMENT

10/8/2009: DECLARATION OF DANIELLE LABOSTRIE IN SUPPORT OF WELLS FARGO BANK, NATIONAL ASSOCIATIONS REQUEST FOR ENTRY OF DEFAULT JUDGMENT

MINUTE ORDER

10/8/2009: MINUTE ORDER

NOTICE OF ENTRY OF JUDGMENT

10/23/2009: NOTICE OF ENTRY OF JUDGMENT

Unknown

4/4/2011: Unknown

RETURN ON ATTACHMENT/EXECUTION

10/10/2012: RETURN ON ATTACHMENT/EXECUTION

MEMORANDUM OF COSTS AFTER JUDGMENT, ACKNOWLEDGMENT OF CREDIT AND DECLARATION OF ACCRUED INTEREST

12/14/2012: MEMORANDUM OF COSTS AFTER JUDGMENT, ACKNOWLEDGMENT OF CREDIT AND DECLARATION OF ACCRUED INTEREST

25 More Documents Available

 

Docket Entries

  • 06/05/2015
  • paper file imaged and destroyed Filed by Clerk

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  • 12/14/2012
  • Writ issued (Los Angeles County a.s. ) Filed by Clerk

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  • 12/14/2012
  • Declaration (accrued interest ) Filed by Attorney for Creditor

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  • 10/10/2012
  • Miscellaneous-Other (return on attachment/execution ) Filed by Attorney for Pltf/Petnr

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  • 04/04/2011
  • Writ issued (Los Angeles county ) Filed by Clerk

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  • 04/04/2011
  • Declaration (accrued interest $23,333.39 ) Filed by Attorney for Creditor

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  • 11/05/2010
  • Notice of Continuance (OF JUDGMENT DEBTOR EXAM ) Filed by Attorney for Plaintiff/Petitioner

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  • 08/18/2010
  • Proof of Service (re: Bela N. Desai ) Filed by Attorney for Plaintiff/Petitioner

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  • 07/23/2010
  • Declaration (accrued interest $12,363.21 ) Filed by Attorney for Creditor

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  • 07/23/2010
  • Writ issued (Los Angeles county ) Filed by Clerk

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9 More Docket Entries
  • 10/08/2009
  • Default Judgment Filed by Attorney for Pltf/Petnr

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  • 07/24/2009
  • Notice-Case Management Conference Filed by Clerk

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  • 07/17/2009
  • Notice (of re-assignmnet ) Filed by Attorney for Pltf/Petnr

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  • 07/17/2009
  • Default Entered (AS N. DESAI AKA NARENDRA M. DESAI ) Filed by Attorney for Pltf/Petnr

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  • 04/29/2009
  • Statement-Case Management Filed by Attorney for Plaintiff/Petitioner

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  • 04/17/2009
  • Notice-Case Management Conference Filed by Attorney for Plaintiff/Petitioner

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  • 04/10/2009
  • Proof-Service/Summons Filed by Attorney for Pltf/Petnr

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  • 03/03/2009
  • Notice-Case Management Conference Filed by Clerk

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  • 03/03/2009
  • OSC-Failure to File Proof of Serv Filed by Clerk

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  • 02/23/2009
  • Complaint

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Tentative Rulings

Case Number: BC408173    Hearing Date: February 26, 2020    Dept: 26

On the Court’s own motion, the hearing on Defendant N. Desai aka Narendra Desai’s Motion to Reconsideration of Denying Defendant’s Motion to Set Aside/Vacate Default and Default Judgment is CONTINUED TO 06/01/20 AT 10:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. Court clerk to give notice.

Case Number: BC408173    Hearing Date: January 16, 2020    Dept: 94

MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT; QUASH SERVICE

(CCP §§ 473.5, 473(d), 418.10)

TENTATIVE RULING:

Defendant N. Desai aka Nerandra M. Desai’s Motion to Vacate Default and Default Judgment, and to Quash Service of Summons is DENIED.

SUMMARY OF COMPLAINT: Action for breach of loan agreement and guaranty.

REQUEST FOR RELIEF: Set aside default judgment entered against Defendant on the grounds that substituted service of the Summons and Complaint was improper and that the default judgment application was not served on him.

OPPOSITION: Defendant was properly served by substitute service and retained an attorney to negotiate a settlement with Plaintiff. The deadline to move for statutory relief has passed and Defendant is not entitled to equitable relief without showing a meritorious defense.

REPLY: Defendant’s reply brief is in contravention of the Court’s briefing schedule and should be struck.

ANALYSIS:

Plaintiff Wells Fargo Bank, NA (“Plaintiff’) filed the instant action against Defendant N. Desai aka Nerandra M. Desai (“Defendant”) on February 23, 2009. Following Defendant’s failure to file a responsive pleading, default and default judgment were entered against him and in favor of Plaintiff on July 17 and October 8, 2009, respectively. The judgment was renewed on March 8, 2019.

On April 11, 2019, Defendant filed the instant Motion to Vacate Default and Default Judgment

(the “Motion to Vacate”), arguing that the substituted service of the Summons and Complaint

was improper and that the default judgment application was not served on him. Plaintiff filed an

Opposition to the Motions on June 20. Defendant filed a Reply and Supplemental Reply on July

3 and August 13.

At the initial hearing on November 5, 2019, the Court requested that the parties file supplemental briefing addressing service of the default judgment application on Defendant. Defendant filed a supplemental brief on November 19, 2019 and Plaintiff filed a supplemental opposition on December 3, 2019. Defendant filed a supplemental reply on December 30, 2019, which was not permitted by the Court. Accordingly, the Court will not consider it.

Vacate Default and Default Judgment for Lack of Personal Jurisdiction; Quash Service of Summons

The Court previously determined that Plaintiff had not submitted evidence to overcome the presumption of service as set forth in the proof of substitute service. (Cal. Evid. Code, § 647.) Plaintiff served the Summons and Complaint on Defendant through substituted service by a registered process server on April 5, 2009 at 5850 W. Olympic Blvd., Los Angeles, CA 90036. (Motion, Exh. 1 (Proof of Service of Summons and Complaint).) Defendant claims that he “was never served by substituted service, [and he] never received a copy of the Summons and Complaint.” (Motion, Desai Decl. ¶ 6.) Notably, Defendant does not deny that he lived at the W. Olympic Blvd. address at the time of the substituted service.

Nothing in Defendant’s supplemental brief address the purportedly defective substitute service. Accordingly, the Court finds that Defendant was properly sub-served with the Summons and Comlpaint.

Vacate Default and Default Judgment Because of Lack of Service of Default Judgment

Application

As explained in the Court’s earlier order, Defendant also moves to vacate the default and default judgment because he was not served with Plaintiff’s “Declaration re: Lost Original Document, Order” and “Declaration of Danielle Labostrie in Support of Wells Fargo Bank, National Association’s Request for Entry of Default Judgment.” Default judgment proceeding must satisfy the requirements of CCP § 585. “An application by a plaintiff for entry of default under subdivision (a), (b), or (c) of Section 585 or Section 586 shall include an affidavit stating that a copy of the application has been mailed to the defendant’s attorney of record or, if none, to the defendant at his or her last known address and the date on which the copy was mailed.” (CCP § 587, emphasis added.)

“‘The rules pertaining to defaults and default judgments must be precisely followed to ensure

that a defaulting defendant is aware of plaintiff’s claims.’ [Citation.]” (Grappo v. McMills (2017)

11 Cal.App.5th 996, 1012, emphasis added.) “A default judgment resulting from the denial of a fair hearing in this manner is void. [Citation.]” (Matera v. McLeod (2006) 145 Cal.App.4th 44, 61.)

Defendant’s supplemental brief reiterates that the Court file reflects that no proofs of service are attached the documents filed in support of the request for default judgment. He declares that he was never served with those documents, nor with the Notice of Case Management Statement. Service of the Notice of Case Management, however, had no bearing on the request for default judgment. Default judgment was entered nearly a month early, on October 8, 2009. Nor has Defendant shown that failure to serve him with those supporting documents is grounds to vacate the default. Code of Civil Procedure section 587 requires that an application for entry of default, filed on Judicial Council form CIV-100 include an affidavit of mailing. The application for entry of default in this case, filed on October 8, 2009, includes a signed affidavit of mailing. (Supp. Opp., RJN, Exh. 14, ¶6.) The affidavit indicates that the application was served on Defendant on September 8, 2009 by mail to the address where the Summons and Complaint were served. (Ibid.) Therefore, the Court finds the procedures for entry of default judgment were followed precisely and there is no evidence Defendant lacked notice of the request for default judgment.

Conclusion

Defendant N. Desai aka Nerandra M. Desai’s Motion to Vacate Default and Default Judgment, and to Quash Service of Summons is DENIED.

Plaintiff to give notice.

Case Number: BC408173    Hearing Date: November 05, 2019    Dept: 94

MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT

(personal jurisdiction, no service of default judgment application)

TENTATIVE RULING:

At this time, there is no tentative ruling on Defendant N. Desai aka Nerandra M. Desai’s Motion to Vacate Default and Default Judgment. The Court requires further briefing from the parties at the hearing.

ANALYSIS:

I. Background

Because Defendant N. Desai aka Nerandra M. Desai (“Defendant”) failed to filed an answer, default and default judgment were entered against him and in favor of Plaintiff Wells Fargo Bank, National Association (“Plaintiff”) on July 17 and October 8, 2019, respectively. The judgment was renewed on March 8, 2019.

On April 11, 2019, Defendant filed the instant Motion to Vacate Default and Default Judgment (the “Motion to Vacate”), arguing that the substituted service of the Summons and Complaint was improper and that the default judgment application was not served on him. Plaintiff filed an Opposition to the Motions on June 20. Defendant filed a Reply and Supplemental Reply on July 3 and August 13.

This action was originally assigned to Department 44, but after Judge Moreton recused himself, it was transferred to this Department.

II. Discussion

A. Vacate Default and Default Judgment for Lack of Personal Jurisdiction

“Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.’ [Citation.]” (Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 858.) “‘[A] void at any time [Citation.]” (Rockefeller Technology Investments (Asia) VII v. Changzhou Sinotype Technology Co., Ltd. (2018) 24 Cal.App.5th 115, 136, emphasis added.)

Plaintiff served the Summons and Complaint on Defendant through substituted service by a registered process server on April 5, 2009 at 5850 W. Olympic Blvd., Los Angeles, CA 90036. (Motion, Exh. 1 (Proof of Service of Summons and Complaint).) Defendant claims that he “was never served by substituted service, [and he] never received a copy of the Summons and Complaint.” (Motion, Desai Decl. ¶ 6.) Notably, Defendant does not deny that he lived at the W. Olympic Blvd. address at the time of the substituted service.

Even if the Court accepts Defendant’s assertion as true, it has no bearing on whether service was proper. By definition, substituted service, as permitted by CCP § 415.20, means Defendant was not personally served with the Summons and Complaint. Thus, the lack of personal service on Defendant does not render the service improper. Equally important, “[D]ue process does not require actual notice; it requires only a method of service ‘reasonably calculated’ to impart actual notice under the circumstances of the case.” (AO Alpha-Bank v. Yakovlev (2018) 21 Cal.App.5th 189, 195, emphasis added.) The fact that Defendant did not acquire actual notice of this action through substituted service does not render the substituted service invalid.

However, “a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.’ [Citation.]” (Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 858.) “‘[A] void at any time [Citation.]” (Rockefeller Technology Investments (Asia) VII v. Changzhou Sinotype Technology Co., Ltd. (2018) 24 Cal.App.5th 115, 136.)

Turning to the issue of evidence, “Evidence Code section 647 provides that a registered process server’s declaration of service establishes a presumption affecting the burden of producing evidence of the facts stated in the declaration. [Citation.]” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390.) The party seeking to defeat service of process must present sufficient evidence to show that the service did not take place as stated. (See Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1428.) Merely denying service took place without more is insufficient to overcome the presumption. (See Id. at p. 1428.)

Because the process server here is registered, the Proof of Service the Summons and Complaint is entitled to a presumption of validity. Defendant has presented no evidence and valid reasons to show that the substituted service is invalid. His denial of service is insufficient to rebut of presumption of valid service under Evid. Code § 647.

B. Vacate Default and Default Judgment Because of Lack of Service of Default Judgment Application

Defendant then claims that the default and default judgment should be vacated because he was not served with Plaintiff’s “Declaration re: Lost Original Document, Order” and “Declaration of Danielle Labostrie in Support of Wells Fargo Bank, National Association’s Request for Entry of Default Judgment.” (Motion p. 3.) Default judgment proceeding must satisfy the requirements of CCP § 585. “An application by a plaintiff for entry of default under subdivision (a), (b), or (c) of Section 585 or Section 586 shall include an affidavit stating that a copy of the application has been mailed to the defendant’s attorney of record or, if none, to the defendant at his or her last known address and the date on which the copy was mailed.” (CCP § 587, emphasis added.) “‘The rules pertaining to defaults and default judgments must be precisely followed to ensure that a defaulting defendant is aware of plaintiff’s claims.’ [Citation.]” (Grappo v. McMills (2017) 11 Cal.App.5th 996, 1012, emphasis added.)

Even though Defendant was in default, CCP § 587 requires Plaintiff to serve the default judgment application on Defendant. Neither party has provided the Court with a proof of service of the default judgment application. “A default judgment resulting from the denial of a fair hearing in this manner is void. [Citation.]” (Matera v. McLeod (2006) 145 Cal.App.4th 44, 61.) The parties are ordered to brief the Court of the service of the default judgment application at the hearing. The Court is open to continuing this Motion to allow both parties to submit supplemental papers.

III. Conclusion & Order

For the stated reasons, there is no tentative ruling on Defendant’s Motion at this time. The Court requires further briefing at the hearing.

Moving party is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCdept94@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.