This case was last updated from Los Angeles County Superior Courts on 04/09/2021 at 10:15:56 (UTC).

HECTOR JAVIER PENA VS INTER STONE TOOLS INC ET AL

Case Summary

On 05/02/2017 HECTOR JAVIER PENA filed a Personal Injury - Other Personal Injury lawsuit against INTER STONE TOOLS INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are MARC D. GROSS, JON R. TAKASUGI, HOLLY E. KENDIG and THOMAS D. LONG. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9877

  • Filing Date:

    05/02/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

MARC D. GROSS

JON R. TAKASUGI

HOLLY E. KENDIG

THOMAS D. LONG

 

Party Details

Plaintiff and Petitioner

PENA HECTOR JAVIER

Defendants and Respondents

INTER STONE TOOLS INC

DOES 1 TO 50

INTERLANDI LUIGI

MARINA INTERLANDI DOE1

KEVIN MODA DOE2

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

TABONE DEREK L. ESQ.

TABONE DEREK LEONARD ESQ.

Defendant Attorney

SANDS THOMAS D

 

Court Documents

Minute Order - MINUTE ORDER (HEARING ON MOTION TO DISMISS; HEARING ON MOTION TO SET ASIDE/...)

2/9/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION TO DISMISS; HEARING ON MOTION TO SET ASIDE/...)

Reply - REPLY SUR-REPLY TO DEFENDANTS REPLY TO OPPOSITION TO DEFENDANTS MOTION TO VACATE DEFAULT JUDGMENT AND DISMISS

1/29/2021: Reply - REPLY SUR-REPLY TO DEFENDANTS REPLY TO OPPOSITION TO DEFENDANTS MOTION TO VACATE DEFAULT JUDGMENT AND DISMISS

Objection - OBJECTION TO EVIDENCE

1/29/2021: Objection - OBJECTION TO EVIDENCE

Notice - NOTICE NOTICE OF ENTRY OF ORDER OF JAN 5 2021

1/20/2021: Notice - NOTICE NOTICE OF ENTRY OF ORDER OF JAN 5 2021

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR ORDER ALTERING THE BRIEFI...)

1/21/2021: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR ORDER ALTERING THE BRIEFI...)

Ex Parte Application - EX PARTE APPLICATION FOR ORDER ALTERING THE BRIEFING SCHEDULE SET BY THE COURT BY ADJUSTING THE DUE DATE ON DEFENDANTS PAPERS SO AS TO NOT PREJUDICE PLAINTIFF, PERMITTING ONE RE

1/21/2021: Ex Parte Application - EX PARTE APPLICATION FOR ORDER ALTERING THE BRIEFING SCHEDULE SET BY THE COURT BY ADJUSTING THE DUE DATE ON DEFENDANTS PAPERS SO AS TO NOT PREJUDICE PLAINTIFF, PERMITTING ONE RE

Notice - NOTICE NOTICE OF NON-OPPOSITION TO NOTICE OF MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT (MOTION FILED WITHOUT DATE FOR HEARING ON JULY 6, 2020)

12/22/2020: Notice - NOTICE NOTICE OF NON-OPPOSITION TO NOTICE OF MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT (MOTION FILED WITHOUT DATE FOR HEARING ON JULY 6, 2020)

Reply - REPLY REPLY TO OPPOSITION TO MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT

12/28/2020: Reply - REPLY REPLY TO OPPOSITION TO MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT

Motion to Set Aside/Vacate Default and / or Default Judgment

10/8/2020: Motion to Set Aside/Vacate Default and / or Default Judgment

Motion to Dismiss

7/6/2020: Motion to Dismiss

Order on Court Fee Waiver (Superior Court)

7/6/2020: Order on Court Fee Waiver (Superior Court)

Abstract of Judgment - Civil and Small Claims

3/30/2020: Abstract of Judgment - Civil and Small Claims

Default Judgment

1/6/2020: Default Judgment

Request for Entry of Default / Judgment

7/17/2019: Request for Entry of Default / Judgment

REQUEST FOR DISMISSAL -

3/22/2018: REQUEST FOR DISMISSAL -

NOTICE OF MOTION, MOTION TO VACATE DISMISSAL AND SEAL THE COURT FILE; DECLARATION OF DEREK L. TABONE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

4/13/2018: NOTICE OF MOTION, MOTION TO VACATE DISMISSAL AND SEAL THE COURT FILE; DECLARATION OF DEREK L. TABONE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

NOTICE OF REJECTION APPLICATION AND ORDER FOR PUBLICATION

6/8/2018: NOTICE OF REJECTION APPLICATION AND ORDER FOR PUBLICATION

AMENDMENT TO COMPLAINT -

5/15/2017: AMENDMENT TO COMPLAINT -

69 More Documents Available

 

Docket Entries

  • 07/07/2021
  • Hearing07/07/2021 at 08:30 AM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service

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  • 03/03/2021
  • Docketat 4:21 PM in Department 31, Thomas D. Long, Presiding; Ruling on Submitted Matter

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  • 03/03/2021
  • DocketMinute Order ( (Ruling on Submitted Matters Taken Under Submission on 2/9/202...)); Filed by Clerk

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  • 03/03/2021
  • DocketOrder (Re: Granting Defendants' Motion to Set Aside Default/Default Judgment, and Denying Motion to Dismiss); Filed by Clerk

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  • 03/03/2021
  • DocketCertificate of Mailing for ((Ruling on Submitted Matters Taken Under Submission on 2/9/202...) of 03/03/2021); Filed by Clerk

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  • 02/09/2021
  • Docketat 08:30 AM in Department 31, Thomas D. Long, Presiding; Hearing on Ex Parte Application (to Strike Defendant's Omnibus/Sur-Surreply Filed and Order) - Held - Motion Denied

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  • 02/09/2021
  • Docketat 2:30 PM in Department 31, Thomas D. Long, Presiding; Hearing on Motion to Dismiss - Held - Taken under Submission

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  • 02/09/2021
  • Docketat 2:30 PM in Department 31, Thomas D. Long, Presiding; Hearing on Motion to Set Aside/Vacate Default and Default Judgment (CCP 473.5) - Held - Taken under Submission

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  • 02/09/2021
  • DocketMinute Order ( (Hearing on Motion to Dismiss; Hearing on Motion to Set Aside/...)); Filed by Clerk

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  • 02/09/2021
  • DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore ((Estrella Herman #13865)); Filed by Luigi Interlandi (Defendant); MARINA INTERLANDI DOE1 (Defendant)

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104 More Docket Entries
  • 03/22/2018
  • DocketRequest for Dismissal; Filed by Hector Javier Pena (Plaintiff)

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  • 03/22/2018
  • DocketAPPLICATION FOR PUBLICATION

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  • 05/22/2017
  • DocketSummons; Filed by Plaintiff/Petitioner

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  • 05/22/2017
  • DocketSUMMONS

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  • 05/15/2017
  • DocketAMENDMENT TO COMPLAINT

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  • 05/15/2017
  • DocketAmendment to Complaint; Filed by Hector Javier Pena (Plaintiff)

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  • 05/15/2017
  • DocketAmendment to Complaint; Filed by Hector Javier Pena (Plaintiff)

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  • 05/15/2017
  • DocketAMENDMENT TO COMPLAINT

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  • 05/02/2017
  • DocketComplaint; Filed by Hector Javier Pena (Plaintiff)

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  • 05/02/2017
  • DocketCOMPLAINT FOR DAMAGES

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Tentative Rulings

Case Number: BC659877    Hearing Date: February 09, 2021    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

HECTOR JAVIER PENA,

Plaintiff(s),

vs.

INTER STONE TOOLS INC., ET AL.,

Defendant(s).

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CASE NO: BC659877

[TENTATIVE] (1) ORDER DENYING MOTION TO SET ASIDE DEFAULT JUDGMENT; (2) ORDER DENYING MOTION TO DISMISS

Dept. 31

8:30 a.m.

February 9, 2021

 

  1. Background

    Plaintiff, Jesus Campos filed this action against Inter Stone Tools, Inc. (“Inter Stone”) and Luigi Interlandi (“Luigi”) for injuries Plaintiff sustained when acetone ignited and exploded near Plaintiff. Plaintiff was in the scope of his employment with Defendants when the incident occurred. The incident allegedly occurred on 8/23/16, and Plaintiff filed the complaint on 5/2/17. On 5/15/17, Plaintiff filed Amendment to Complaints naming Marina Interlandi (“Marina”) (collectively, with Luigi, the “Interlandis”) as Doe 1, and naming Kevin Moda (“Moda”) as Doe 2. On 3/22/18, a Request for Dismissal was filed dismissing the entire action with prejudice. However, this dismissal was set aside on 5/14/18.

    Thereafter, Plaintiff filed an application for publication of the summons and complaint, which the court granted as to Defendants the Interlandis on 1/10/19. Plaintiff then obtained both Luigi Interlandi’s default on 4/9/19, and obtained Marina Interlandi’s default on 7/17/19. On 9/19/19, Plaintiff filed a Request for Dismissal dismissing Inter Stone and Moda without prejudice. Default judgment in the total amount of $663,295.86 was entered against the Interlandis on 1/6/20.

    Defendants, the Interlandis now move to set aside the default judgment and to dismiss the case for lack of service of the summons and complaint on them.

    This matter was originally heard on 1/5/21, where the court struck the replies to both motions. The Interlandis were ordered to file and serve amended replies on both motions within 10 calendar days, with Plaintiff to have 10 days to file surreplies and evidentiary objections to the amended replies. (Min. Order 1/5/21.) The hearing was then continued to 2/9/21.

  2. Motion to Set Aside Default Judgment

  1. Parties’ Positions

The Interlandis provide that they learned of this action from Moda, and that they then retained Payman Taheri (“Taheri”) as counsel to represent them in this matter on 2/28/18. Taheri provides he informed the Interlandis of the 3/22/18 dismissal and advised the Interlandis Taheri would keep them abreast of any developments with case. The Interlandis contend they then did not hear about this action until 5/29/20 when they applied for COVID-19 related relief and the judgment appeared on their credit report. The Interlandis then contacted Taheri to ask about the case, and Taheri learned of the judgment on that same date. Taheri then contacted the Interlandis’ current counsel to represent them because Taheri voluntarily went on inactive status.

The Interlandis argue the default judgment entered against them should be set aside because Taheri is responsible for the judgment. The Interlandis contend Taheri took responsibility for the case but went on inactive status on 5/25/18, and never followed up on the case with the Interlandis. The Interlandis argue relief is mandatory under CCP § 473(b). Furthermore, the Interlandis assert they have not been served with process. The Interlandis aver that Plaintiff never attempted to serve them at Unit 42, 5200 White Oak, Encino, CA 91316, where the Interlandis reside, and instead Plaintiff attempted to serve them at the incorrect address. The Interlandis contend service by publication is not adequate whereas here, Plaintiff was aware of the Interlandis’ whereabouts and could have served them by other means.

In opposition, Plaintiff argues he properly attempted to serve the Interlandis at the correct address multiple times before the order approving service by publication was filed. Plaintiff contends the Interlandis are not entitled to relief under CCP § 473(b) because entry of the default and default judgment was not the fault of their counsel. Plaintiff contends the defaults were entered against the Interlandis because the Interlandis evaded service of the summons and complaint, and nothing Taheri did or did not do caused the defaults to be taken against the Interlandis. Furthermore, Plaintiff contends the Interlandis are not blameless because the facts show they failed to respond to letters from counsel, they evaded service, ignored all notices mailed to them at their residence, and provided false information concerning their business. What is more, Plaintiff asserts the service by publication was valid because the court found the Interlandis could not be served by other methods.

  1. Amended Reply and Surreply

The Interlandis contend the court never attained jurisdiction over them because personal service was never attempted, and that they have never evaded service. The Interlandis submit the declaration of Francisco Orea (“Orea”), who is a security guard for the gated community in which the Interlandis have lived. The Interlandis argue it is more likely than not that their property was never visited, as Raheb’s declaration fails to state he interacted with a security guard. Further, the Interlandis argue the service by publication is void, and that Plaintiff’s lack of compliance with CCP § 587 was prejudicial to the Interlandis. The Interlandis argue asserts that Plaintiff admitted to knowing their address in December 2018 but claimed to not know their address when required to satisfy CCP § 587. Moreover, the Interlandis assert the court must dismiss this action under CCP §§ 583.250 and 583.420.

In his surreply, Plaintiff argues the Interlandis failed to raise any new facts in their amended reply, and that the Interlandis misconstrue the facts and law. Further, Plaintiff contends the alleged lack of compliance does not deprive the court of jurisdiction or prejudice the Interlandis. Plaintiff argues the Interlandis ignored all legal notices and would likely have ignored the request to enter default as well.

On 2/1/21, the Interlandis filed an omnibus reply as permitted by the 1/21/21, albeit late. The Interlandis again assert the service by publication was invalid, and thus, the court does not have jurisdiction over the Interlandis. The Interlandis assert Raheb’s declaration concerning service at the Interlandis’ address is not credible. Further, the Interlandis again contend Plaintiff properly failed to serve them with notice of the 5/14/18 Order vacating the dismissal.

  1. Evidentiary Objections

Plaintiff, in his surreply, filed five objections to Orea’s declaration attached to the Interlandis’ amended reply. Objection 1 to paragraph 3 is overruled. Objections 2 and 5 to paragraphs 5 and 10 are sustained, as the entry logs would constitute the best evidence and no reason is given for why they are not provided. Objections 3 and 4 to paragraphs 8 and 9 are overruled as the statements are relevant.

The Interlandis, in their omnibus reply, assert 24 objections to the declaration of Derek L. Tabone and 4 objections to the declaration of Raheb. As to the objections to Tabone’s declaration, in the order presented, Objections 1-24 are overruled, as the statements are relevant to the instant proceedings and Tabone provides sufficient foundation for each statement. As to the objections asserted to Raheb’s declaration, Objections 1-4 are overruled, as the statements are relevant and Raheb establishes personal knowledge for each.

  1. Notice of 5/14/18 Order Vacating Dismissal

The Interlandis argue that the court’s 5/14/18 Order setting aside Plaintiff’s 3/22/18 dismissal is void.

However, CCP § 1014 states:

A defendant appears in an action when the defendant answers, demurs, files a notice of motion to strike, files a notice of motion to transfer pursuant to Section 396b, moves for reclassification pursuant to Section 403.040, gives the plaintiff written notice of appearance, or when an attorney gives notice of appearance for the defendant. After appearance, a defendant or the defendant's attorney is entitled to notice of all subsequent proceedings of which notice is required to be given. Where a defendant has not appeared, service of notice or papers need not be made upon the defendant.

(Emphasis added.)

Here, Plaintiff filed the motion to vacate the 3/22/18 dismissal on 4/13/18. The court then granted the motion on 5/14/18. As of this date, neither Luigi nor Marina Interlandis had appeared in the action themselves or through counsel.

The Interlandis cite to David S. Karton, A Law Corp. v. Dougherty (2009) 171 Cal.App.4th 133 (“Karton”), in arguing the Order setting aside the dismissal is void because Plaintiff did not serve notice on the Interlandis of such. However, the Karton Court addressed whether a judgment creditor’s memorandum of costs was required to be served on a default judgment debtor, which the Court held was required specifically under CCP § 685.070. (Id. at 147-48.) The Karton Court did not hold or address whether a plaintiff was required to give notice of a motion to vacate a dismissal where the other party had not appeared in the action. (State Farm & Fire Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 614 [“Cases are not authority for propositions not considered therein.”].)

The Interlandis, thus, fail to show the 5/14/18 Order vacating the prior dismissal is void.

  1. Mandatory Relief Under CCP § 473(b)

The Interlandis contend they are entitled to mandatory relief under CCP § 473(b) based on their prior counsel, Taheri’s, fault.

CCP § 473(b) states in pertinent part,

Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any … dismissal entered against his or her client…

(Emphasis added.) The six-month limitation period for mandatory relief commences at the time the default judgment is entered, rather than the earlier date the default is entered. (Sugasawara v. Newland (1994) 27 Cal.App.4th 294, 296-97 [“it makes little sense to vacate a judgment without also vacating an underlying default....”].)

“To obtain mandatory relief under section 473, plaintiffs' counsel need not show that his or her mistake, inadvertence, surprise or neglect was excusable. No reason need be given for the existence of one of these circumstances. Attestation that one of these reasons existed is sufficient to obtain relief, unless the trial court finds that the dismissal did not occur because of these reasons.” (Graham v. Beers (1994) 30 Cal.App.4th 1656, 1660; accord. Leader v. Health Indus. of America, Inc. (2001) 89 Cal.App.4th 603, 616 [“The range of attorney conduct for which relief can be granted in the mandatory provision is broader than that in the discretionary provision, and includes inexcusable neglect”.].)

Admittedly, such relief is not available when the error is the client’s alone. (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 442.) However, there is a split in authority as to whether relief is available when the error lies partly with the client and partly with the attorney. (Compare Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1248 [relief available only if client is “totally innocent of any wrongdoing”] with Benedict v. Danner Press (2001) 87 Cal.App.4th 923, 932 [relief available as long as client did not engage in intentional misconduct]; see generally Gutierrez v. G & M Oil Co, Inc. (2010) 184 Cal.App.4th 551, 557–558 [detailing split of authority].)

Where the cause of the default is in dispute, the attorney’s affidavit can serve as “ ‘a causation testing device.’ ” (Martin Potts & Associates, Inc., 244 Cal.App.4th at 442.) “‘Neglect’ includes an “omission” [Citation], including the failure to give “ ‘proper attention to a person or thing, whether inadvertent, negligent, or willful’ ” [Citations].” (Id. at 443.) Consequently, an attorney’s acknowledgment that he or she received the case before the default was entered and did nothing qualifies as not giving proper attention, and thus as neglect. (Id.; compare with Cisneros v. Vueve (1995) 37 Cal.App.4th 906, 912 [affirming trial court order denying § 473 relief because the lawyer was not representing the clients when their defaults were entered and therefore was not the proximate cause of their entry].)

In this case, the default judgment was entered against the Interlandis on 1/6/20, and Defendants filed this motion on 7/6/20. Thus, the motion is timely.

Nonetheless, the parties dispute whether the underlying default judgment entered against the Interlandis was caused by Interlandis’ prior counsel, or by the Interlandis’ own conduct. The Interlandis submit Taheri’s declaration stating that Taheri was retained by the Interlandis to represent them in this action in February 2018. (Mot. Taheri Decl. ¿ 2.) Taheri asserts that upon checking the docket in this matter on 3/26/18, he learned the action had been dismissed and informed Luigi Interlandi of such, and he told Luigi Interlandi there was nothing for him to be concerned with. (Id. at ¿¿ 7-8.) Taheri represented to Luigi Interlandi that Taheri would keep the Interlandis abreast of all developments going forward, and that Taheri would remain the attorney in case any action was filed against the Interlandis. (Id at ¿ 9.) Taheri then requested the BAR place him on inactive status on 5/25/18, but he did not inform the Interlandis of such. (Id. at ¿¿ 11-12.) Taheri states then learned of the judgment through Luigi Interlandi on 5/29/20, and asserts it is Taheri’s fault the Interlandis did not appear in this action. (Id. at ¿¿ 13, 17.)

However, Plaintiff contends the default judgment was entered because the Interlandis evaded personal service to such an extent the court ordered service by publication. Plaintiff asserts that nothing Taheri did or did not do had any effect on the events leading up to the entry of default, service by publication or default judgment.

The Interlandis contend they reside at Unit 42, 5200 White Oak, Encino, CA 91316, but Plaintiff only attempted service on at this address at Units 2 and 43, not Unit 42. Admittedly, there is evidence that Plaintiff mailed a copy of the summons and complaint to the Interlandis to Unit 2 at the above address 5/11/18. (Mot. Exh. E.) Further, the Interlandis point to Plaintiff’s counsel declaration in support of the application for service by publication filed on 12/17/18, where Plaintiff’s counsel identifies the Interlandis’ unit as Unit 43 at the address. (Mot. Exh. I, ¿ 11.)

However, Plaintiff provides evidence showing attempts to serve Marina Interlandi as Inter Stone’s agent of process and numerous attempts to serve the Interlandis multiple times at their residence. (Opp. Exhs. A-B, H.) In particular, Plaintiff provides the declaration of Stephen Raheb, a registered process server, who states that he attempted to serve the Interlandis at their reside at 5200 White Oak A venue, Unit 42 on nine different occasions. (Id. at Exh. H.) On the last attempt of service at this address, the process server noted he heard noise inside and saw someone look through the peephole but refuse to answer the door, so the process server left copies of the pleadings attached to the unit’s door. (Id.)

The Interlandis do not controvert any of this evidence. In their reply they merely assert the process server tried to serve Unit 4, not Unit 42. However, Plaintiff’s process server’s declaration clearly asserts that he attempted to serve the Interlandis on nine different occasions at Unit 42, which the Interlandis admit is their residence.

Consequently, the entry of defaults, the order for service of publication, and the default judgment were obtained because of the Interlandis’ actions. Nothing their prior counsel, Taheri, did or did not do was a cause in fact of the default judgment entered against the Interlandis. Taheri does not identify any neglect or conduct by himself that caused the default. Ultimately, the defaults and default judgment would have been avoided if the Interlandis had not evaded service by the process server on nine different occasions.

The cases affirming denial of relief under CCP § 473(b), even if an attorney’s conduct contributed to the entry of default, involve circumstances where the client’s intentional misconduct was found responsible, at least in part, for the default. (Benedict, 87 Cal.App.4th at 929.) It is the Interlandis intentional evasion of service that led to their default judgment; Taheri did not contribute to the entry of default or default judgment. (See Opp. Exh. H.)

Based on the foregoing, the Interlandis are not entitled to relief under CCP § 473(b). (See Steineck v. Coleman (1925) 72 Cal.App. 244, 248 [although mistake of attorney concerning time to file answer may in some circumstance warrant relief under CCP § 473(b), it was not abuse of discretion to refuse to relief defendant from default judgment where it appeared defendant intentionally evaded service].)

  1. CCP § 473.5

CCP § 473.5 provides:

(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.

(c) Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that 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, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.

In this case, the Interlandis further argue the default and default judgment must be vacated under CCP § 473.5 because they were not served with the summons and complaint. However, this argument is rejected. The Interlandis do not establish they had no notice of the action against them, and instead admit they were aware of the action since February 2018. Moreover, the Interlandis fail to show that any such lack of notice was not due to their avoidance of service. As detailed above, Plaintiff provides evidence showing he attempted to personally serve the Interlandis on nine occasions, and that on the last occasion the process server heard people inside and through the peephole, but they refused to answer. Notably, despite being given an opportunity to file an amended reply, the reply papers do not contain a rebuttal of these contentions by either of the Interlandis.

While the Interlandis submitted Orea’s declaration with their amended reply, Orea’s declaration does not establish that Raheb did not actually attempt to serve the Interlandis. At most, Orea’s declaration suggests Raheb did not check in with security prior to attempting to serve the Interlandis, and that as Raheb admits, service was not effected on any security guards.

  1. CCP § 587

CCP § 587 states: “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. If no such address of the defendant is known to the plaintiff or plaintiff's attorney, the affidavit shall state that fact.”

“It is well settled that “[t]he requirement of an affidavit of mailing under section 587 is not jurisdictional, and hence the failure to file one does not deprive the trial court of jurisdiction to render judgment.” [Citation.] A court may properly decline to set aside a default judgment where the absence of the affidavit of mailing is not prejudicial.” (Murray & Murray v. Raissi Real Estate Development, LLC (2015) 233 Cal.App.4th 379, 385.) “When is an absent–or as in this case, a defective–affidavit of mailing prejudicial? The answer seems to be where the party seeking relief from default can credibly claim it would have received the request for entry of default in question.” (Id. at 386.)

Here, Plaintiff’s counsel seemingly concedes in his surreply that Plaintiff was aware of the Interlandis’ address, but Plaintiff contends he was required to serve the Interlandis through publication because the Interlandis were acting fraudulently with the intent to evade service. Plaintiff argues the Interlandis had copies of the summons and complaint mailed to them, retained counsel in February 2018, and thus, were not prejudiced by the failure to enter default.

In Murray & Murray, the plaintiff did not mail a copy of the request for entry of default to the defendant. (Murray & Murray, 233 Cal.App.4th at 386.) The plaintiff claimed the defendant’s address was unknown to it, but this was demonstrably not true. (Id.) “Simply because no one was available at that address to accept personal service at the times subservice was attempted does not mean that first-class mail sent to [defendant] at that address would be returned undeliverable. [Plaintiff] admittedly never attempted to mail any documents to any of the addresses it uncovered for [defendant], so it cannot credibly claim that any such mail would have been undeliverable.” (Id. at 386-87.) The Court set aside the default and default judgment against the defendant under these facts because of the plaintiff’s failure to comply with CCP § 587. (Id. at 388.)

However, unlike Murray & Murray, where the plaintiff never tried mailing any notices to the defendant, in this case, Plaintiff’s evidence shows the summons and complaint were mailed to the Interlandis, and the Interlandis were evading service. “A person who deliberately conceals himself to evade service of process is scarcely in a position to complain overmuch of unfairness in substitutive methods of notification enacted by the Legislature to cope with such situations. When it satisfactorily appears that a defendant by his own design successfully has secreted himself from the process server and thus thwarted personal service, it would indeed be anomalous to heed an assertion that he had been denied notice and an opportunity to be heard.” (Miller v. Superior Court In and For Los Angeles County (1961) 195 Cal.App.2d 779, 786.)

Therefore, because of the uncontroverted evidence showing the Interlandis were evading service, they cannot now complain they were prejudiced by Plaintiff’s lack of compliance with CCP § 587.

  1. Conclusion

Defendants the Interlandis motion to vacate default and default judgment is denied.

  1. Motion to Dismiss

The Interlandis further move for an order to dismiss the action pursuant to CCP §§ 583.210, 583.250. However, given the above ruling denying Defendants’ motion to set aside the default judgment, the Interlandis do not have standing to move to dismiss the action. (Farrar, Herrick & Associates v. Safecare Co. (1981) 115 Cal.App.3d 123, 130 [Defendant “had no standing to move for a dismissal unless and until it prevailed in a motion to set aside the default judgment previously entered in favor of [Plaintiff].”]; see also First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 960 [effect of default is to cut off right to take further affirmative steps such as filing a pleading or motion].)

What is more, as analyzed above, the Interlandis have not shown that service by publication was improper in this matter where the evidence they evaded service is not controverted. Furthermore, the evidence and court’s records show Luigi Interlandi was served by publication on February 2, 12, 20 and 27, 2019, and service on Marina Interlandi was made on May 10, 17, 24 and 31, 2019. This action was filed on 5/2/17, and thus, both of the Interlandis were served by publication before three years had passed. The matter is not subject to dismissal under CCP § 583.210. Finally, given a default judgment has been obtained against the Interlandis, the court does not find Plaintiff has delayed prosecuting the matter. (See CCP § 583.410.)

Based on the foregoing, Defendants the Interlandis’ motion to dismiss is denied.

Moving Defendants are ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

 

Dated this 9th day of February, 2021

Hon. Thomas D. Long

Judge of the Superior Court

Case Number: BC659877    Hearing Date: January 05, 2021    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

HECTOR JAVIER PENA,

Plaintiff(s),

vs.

INTER STONE TOOLS INC., ET AL.,

Defendant(s).

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CASE NO: BC659877

[TENTATIVE] (1) ORDER DENYING MOTION TO SET ASIDE DEFAULT JUDGMENT; (2) ORDER DENYING MOTION TO DISMISS

Dept. 31

8:30 a.m.

January 5, 2021

 

1. Background

Plaintiff, Jesus Campos filed this action against Inter Stone Tools, Inc. (“Inter Stone”) and Luigi Interlandi (“Luigi”) for injuries Plaintiff sustained when acetone ignited and exploded near Plaintiff. Plaintiff was in the scope of his employment with Defendants when the incident occurred. The incident allegedly occurred on 8/23/16, and Plaintiff filed the complaint on 5/2/17. On 5/15/17, Plaintiff filed Amendment to Complaints naming Marina Interlandi (“Marina”) (collectively, with Luigi, the “Interlandis”) as Doe 1, and naming Kevin Moda (“Moda”) as Doe 2. On 3/22/18, a Request for Dismissal was filed dismissing the entire action with prejudice. However, this dismissal was set aside on 5/14/18.

Thereafter, Plaintiff filed an application for publication of the summons and complaint, which the court granted as to Defendants the Interlandis, which the court granted on 1/10/19. Plaintiff then obtained both Luigi Interlandi’s default on 4/9/19, and obtained Marina Interlandi’s default on 7/17/19. On 9/19/19, Plaintiff filed a Request for Dismissal dismissing Inter Stone and Moda without prejudice. Default judgment in the total amount of $663,295.86 was entered against the Interlandis on 1/6/20.

Defendants, the Interlandis now moves to set aside the default judgment and to dismiss the case for lack of service of the summons and complaint on them. Plaintiff opposes the motions, and the Interlandis have filed replies.

2. Motion to Set Aside Default Judgment

a. Parties’ Positions

The Interlandis provide that they learned of this action from Moda, and that they then retained Payman Taheri (“Taheri”) as counsel to represent them in this matter on 2/28/18. Taheri provides he informed the Interlandis of the 3/22/18 dismissal, and advised the Interlandis Taheri would keep them abreast of any developments with case. The Interlandis contend they then did not hear about this action until 5/29/20 when they applied for COVID-19 related relief and the judgment appeared on their credit report. The Interlandis then contacted Taheri to ask about the case, and Taheri learned of the judgment on that same date. Taheri then contacted the Interlandis’ current counsel to represent them because Taheri voluntarily went on inactive status.

The Interlandis argue the default judgment entered against them should be set aside because Taheri is responsible for the judgment. The Interlandis contend Taheri took responsibility for the case but went on inactive status on 5/25/18, and never followed up on the case with the Interlandis. The Interlandis argue relief is mandatory under CCP § 473(b). Furthermore, the Interlandis assert they have not been served with process. The Interlandis aver that Plaintiff never attempted to serve them at Unit 42, 5200 White Oak, Encino, CA 91316, where the Interlandis reside, and instead Plaintiff attempted to serve them at the incorrect address. The Interlandis contend service by publication is not adequate whereas here, Plaintiff was aware of the Interlandis’ whereabouts and could have served them by other means.

In opposition, Plaintiff argues he properly attempted to serve the Interlandis at the correct address multiple times before the order approving service by publication was filed. Plaintiff contends the Interlandis are not entitled to relief under CCP § 473(b) because entry of the default and default judgment was not the fault of their counsel. Plaintiff contends the defaults were entered against the Interlandis because the Interlandis evaded service of the summons and complaint, and nothing Taheri did or did not do caused the defaults to be taken against the Interlandis. Furthermore, Plaintiff contends the Interlandis are not blameless because the facts show they failed to respond to letters from counsel, they evaded service, ignored all notices mailed to them at their residence, and provided false information concerning their business. What is more, Plaintiff asserts the service by publication was valid because the court found the Interlandis could not be served by other methods.

In reply, the Interlandis contend Plaintiff failed to properly serve them with Plaintiff’s motion to vacate dismissal that was granted on 5/14/18. The Interlandis contend that as a result, the 5/14/18 order vacating the 3/22/18 dismissal is void. Further, the Interlandis contend Plaintiff’s opposition is untimely. The Interlandis argue they were not served with the summons and complaint and did not have actual notice of the action. Moreover, the Interlandis assert the service by publication is void.

b. Untimely Opposition

Plaintiff’s opposition to the Interlandis’ motion was untimely filed on 12/23/20. However, in the absence of any prejudice, and given the Interlandis’ reply addressing the arguments raised in the opposition, the court exercises its discretion to consider the opposition on the merits.

c. Notice of 5/14/18 Order Vacating Dismissal

The Interlandis argue that the court’s 5/14/18 Order setting aside Plaintiff’s 3/22/18 dismissal is void.

However, CCP § 1014 states:

A defendant appears in an action when the defendant answers, demurs, files a notice of motion to strike, files a notice of motion to transfer pursuant to Section 396b, moves for reclassification pursuant to Section 403.040, gives the plaintiff written notice of appearance, or when an attorney gives notice of appearance for the defendant. After appearance, a defendant or the defendant's attorney is entitled to notice of all subsequent proceedings of which notice is required to be given. Where a defendant has not appeared, service of notice or papers need not be made upon the defendant.

(Emphasis added.)

Here, Plaintiff filed the motion to vacate the 3/22/18 dismissal on 4/13/18. Thee court then granted the motion on 5/14/18. As of this date, neither Luigi nor Marina Interlandi had appeared in the action themselves or through counsel.

The Interlandis cite to David S. Karton, A Law Corp. v. Dougherty (2009) 171 Cal.App.4th 133 (“Karton”), in arguing the Order setting aside the dismissal is void because Plaintiff did not serve notice on the Interlandis of such. However, the Karton Court addressed whether a judgment creditor’s memorandum of costs was required to be served on a default judgment debtor, which the Court held was required specifically under CCP § 685.070. (Id. at 147-48.) The Karton Court did not hold or address whether a plaintiff was required to give notice of a motion to vacate a dismissal where the other party had not appeared in the action. (State Farm & Fire Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 614 [“Cases are not authority for propositions not considered therein.”].)

The Interlandis, thus, fail to show the 5/14/18 Order vacating the prior dismissal is void.

d. Mandatory Relief Under CCP § 473(b)

The Interlandis contend they are entitled to mandatory relief under CCP § 473(b) based on their prior counsel, Taheri’s, fault.

CCP § 473(b) states in pertinent part,

Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any … dismissal entered against his or her client…

(Emphasis added.) The six-month limitation period for mandatory relief commences at the time the default judgment is entered, rather than the earlier date the default is entered. (Sugasawara v. Newland (1994) 27 Cal.App.4th 294, 296-97 [“it makes little sense to vacate a judgment without also vacating an underlying default....”].)

“To obtain mandatory relief under section 473, plaintiffs' counsel need not show that his or her mistake, inadvertence, surprise or neglect was excusable. No reason need be given for the existence of one of these circumstances. Attestation that one of these reasons existed is sufficient to obtain relief, unless the trial court finds that the dismissal did not occur because of these reasons.” (Graham v. Beers (1994) 30 Cal.App.4th 1656, 1660; accord. Leader v. Health Indus. of America, Inc. (2001) 89 Cal.App.4th 603, 616 [“The range of attorney conduct for which relief can be granted in the mandatory provision is broader than that in the discretionary provision, and includes inexcusable neglect”.].)

Admittedly, such relief is not available when the error is the client’s alone. (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 442.) However, there is a split in authority as to whether relief is available when the error lies partly with the client and partly with the attorney. (Compare Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1248 [relief available only if client is “totally innocent of any wrongdoing”] with Benedict v. Danner Press (2001) 87 Cal.App.4th 923, 932 [relief available as long as client did not engage in intentional misconduct]; see generally Gutierrez v. G & M Oil Co, Inc. (2010) 184 Cal.App.4th 551, 557–558 [detailing split of authority].)

Where the cause of the default is in dispute, the attorney’s affidavit can serve as “ ‘a causation testing device.’ ” (Martin Potts & Associates, Inc., 244 Cal.App.4th at 442.) “‘Neglect’ includes an “omission” [Citation], including the failure to give “ ‘proper attention to a person or thing, whether inadvertent, negligent, or willful’ ” [Citations].” (Id. at 443.) Consequently, an attorney’s acknowledgment that he or she received the case before the default was entered and did nothing qualifies as not giving proper attention, and thus as neglect. (Id.; compare with Cisneros v. Vueve (1995) 37 Cal.App.4th 906, 912 [affirming trial court order denying § 473 relief because the lawyer was not representing the clients when their defaults were entered and therefore was not the proximate cause of their entry].)

In this case, the default judgment was entered against the Interlandis on 1/6/20, and Defendants filed this motion on 7/6/20. Thus, the motion is timely.

Nonetheless, the parties dispute whether the underlying default judgment entered against the Interlandis was caused by Interlandis’ prior counsel, or by the Interlandis’ own conduct. The Interlandis submit Taheri’s declaration stating that Taheri was retained by the Interlandis to represent them in this action in February 2018. (Mot. Taheri Decl. ¿ 2.) Taheri asserts that upon checking the docket in this matter on 3/26/18, he learned the action had been dismissed and informed Luigi Interlandi of such, and he told Luigi Interlandi there was nothing for him to be concerned with. (Id. at ¿¿ 7-8.) Taheri represented to Luigi Interlandi that Taheri would keep the Interlandis abreast of all developments going forward, and that Taheri would remain the attorney in case any action was filed against the Interlandis. (Id at ¿ 9.) Taheri then requested the BAR place him on inactive status on 5/25/18, but he did not inform the Interlandis of such. (Id. at ¿¿ 11-12.) Taheri states then learned of the judgment through Luigi Interlandi on 5/29/20, and asserts it is Taheri’s fault the Interlandis did not appear in this action. (Id. at ¿¿ 13, 17.)

However, Plaintiff contends the default judgment was entered because the Interlandis evaded personal service to such an extent the court ordered service by publication. Plaintiff asserts that nothing Taheri did or did not do had any effect on the events leading up to the entry of default, service by publication or default judgment.

The Interlandis contend they reside at Unit 42, 5200 White Oak, Encino, CA 91316, but Plaintiff only attempted service on at this address at Units 2 and 43, not Unit 42. Admittedly, there is evidence that Plaintiff mailed a copy of the summons and complaint to the Interlandis to Unit 2 at the above address 5/11/18. (Mot. Exh. E.) Further, the Interlandis point to Plaintiff’s counsel declaration in support of the application for service by publication filed on 12/17/18, where Plaintiff’s counsel identifies the Interlandis’ unit as Unit 43 at the address. (Mot. Exh. I, ¿ 11.)

However, Plaintiff provides evidence showing attempts to serve Marina Interlandi as Inter Stone’s agent of process and numerous attempts to serve the Interlandis multiple times at their residence. (Opp. Exhs. A-B, H.) In particular, Plaintiff provides the declaration of Stephen Raheb, a registered process server, who states that he attempted to serve the Interlandis at their reside at 5200 White Oak A venue, Unit 42 on nine different occasions. (Id. at Exh. H.) On the last attempt of service at this address, the process server noted he heard noise inside and saw someone look through the peephole but refuse to answer the door, so the process server left copies of the pleadings attached to the unit’s door. (Id.)

The Interlandis do not controvert any of this evidence. In their reply they merely assert the process server tried to serve Unit 4, not Unit 42. However, Plaintiff’s process server’s declaration clearly asserts that he attempted to serve the Interlandis on nine different occasions at Unit 42, which the Interlandis admit is their residence.

Consequently, the entry of defaults, the order for service of publication, and the default judgment were obtained because of the Interlandis’ actions. Nothing their prior counsel, Taheri, did or did not do was a cause in fact of the default judgment entered against the Interlandis. Taheri does not identify any neglect or conduct by himself that caused the default. Ultimately, the defaults and default judgment would have been avoided if the Interlandis had not evaded service by the process server on nine different occasions.

The cases affirming denial of relief under CCP § 473(b), even if an attorney’s conduct contributed to the entry of default, involve circumstances where the client’s intentional misconduct was found responsible, at least in part, for the default. (Benedict, 87 Cal.App.4th at 929.) It is the Interlandis intentional evasion of service that led to their default judgment; Taheri did not contribute to the entry of default or default judgment. (See Opp. Exh. H.)

Based on the foregoing, the Interlandis are not entitled to relief under CCP § 473(b). (See Steineck v. Coleman (1925) 72 Cal.App. 244, 248 [although mistake of attorney concerning time to file answer may in some circumstance warrant relief under CCP § 473(b), it was not abuse of discretion to refuse to relief defendant from default judgment where it appeared defendant intentionally evaded service].)

e. CCP § 473.5

CCP § 473.5 provides:

(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.

(c) Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that 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, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.

In this case, the Interlandis further argue the default and default judgment must be vacated under CCP § 473.5 because they were not served with the summons and complaint. However, this argument is rejected. The Interlandis do not establish they had no notice of the action against them, and instead admit they were aware of the action since February 2018. Moreover, the Interlandis fail to show that any such lack of notice was not due to their avoidance of service. As detailed above, Plaintiff provides evidence showing he attempted to personally serve the Interlandis on nine occasions, and that on the last occasion the process server heard people inside and through the peephole, but they refused to answer. Notably, the reply papers do not contain a rebuttal of these contentions.

f. Conclusion

Defendants the Interlandis motion to vacate default and default judgment is denied.

3. Motion to Dismiss

The Interlandis further move for an order to dismiss the action pursuant to CCP §§ 583.210, 583.250. However, given the above ruling denying Defendants’ motion to set aside the default judgment, the Interlandis do not have standing to move to dismiss the action. (Farrar, Herrick & Associates v. Safecare Co. (1981) 115 Cal.App.3d 123, 130 [Defendant “had no standing to move for a dismissal unless and until it prevailed in a motion to set aside the default judgment previously entered in favor of [Plaintiff].”]; see also First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 960 [effect of default is to cut off right to take further affirmative steps such as filing a pleading or motion].)

What is more, as analyzed above, the Interlandis have not shown that service by publication was improper in this matter where the evidence they evaded service is not controverted. Furthermore, the evidence and court’s records show Luigi Interlandi was served by publication on February 2, 12, 20 and 27, 2019, and service on Marina Interlandi was made on May 10, 17, 24 and 31, 2019. This action was filed on 5/2/17, and thus, both of the Interlandis were served by publication before three years had passed. The matter is not subject to dismissal under CCP § 583.210. Finally, given a default judgment has been obtained against the Interlandis, the court does not find Plaintiff has delayed prosecuting the matter. (See CCP § 583.410.)

Based on the foregoing, Defendants the Interlandis’ motion to dismiss is denied.

Moving Defendants are ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.orgIf the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

 

Dated this 5th day of January, 2021

Hon. Thomas D. Long

Judge of the Superior Court

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