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This case was last updated from Los Angeles County Superior Courts on 09/26/2020 at 06:33:59 (UTC).

HOWARD A MONTICUR ET AL VS BENTLEY MANOR BY SERENITY CARE

Case Summary

On 05/17/2017 HOWARD A MONTICUR filed a Personal Injury - Elder/Dependant Adult Abuse lawsuit against BENTLEY MANOR BY SERENITY CARE. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are BARBARA M. SCHEPER and EDWARD B. MORETON. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1809

  • Filing Date:

    05/17/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Elder/Dependant Adult Abuse

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

BARBARA M. SCHEPER

EDWARD B. MORETON

 

Party Details

Plaintiffs and Petitioners

MONTICUE DEBORAH Y.

MONTICUR HOWARD A. IN AND THROUGH HIS

Defendants and Respondents

KAISER FOUNATION HEALTH PLAN INC

BENTLEY MANOR SERENITY CARE HEALTH

SOUTHERN CALIFORNIA PERMANENTE MEDICAL

BINKO CORP

DOES 1 TO 60

BENTLEY MANOR BY SERENITY CARE HEALTH

HHKP METRO LA HOME HEALTH

SERENITY CARE HEALTH GROUP

OGBECHIE BIOSEH

SERENITY CARE HEALTH EA CORPORATION

BINKO CORP DBA BENTLY MANOR SERENITY CARE HEALTH

SERENITY CARE HEALTH

SERENITY CARE HEALTH CORPORATION

10 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

MORAN MICHAEL F. ESQ.

FLINT LISA TRINH ESQ.

Defendant and Respondent Attorneys

BADAWIYA RIMA M.

TROTTER MICHAEL J. ESQ.

VALENTINE JOHN JR. ESQ.

TROTTER MICHAEL JOHN ESQ.

 

Court Documents

Application and Order for Appearance and Examination

7/16/2019: Application and Order for Appearance and Examination

Notice of Ruling - NOTICE OF RULING ON BINKO CORP AND BIOSEH OGBECHIE'S FAILURE TO APPEAR AT JUDGMENT DEBTOR EXAMINATION

10/9/2019: Notice of Ruling - NOTICE OF RULING ON BINKO CORP AND BIOSEH OGBECHIE'S FAILURE TO APPEAR AT JUDGMENT DEBTOR EXAMINATION

Answer

11/6/2017: Answer

Proof of Service (not Summons and Complaint)

4/3/2019: Proof of Service (not Summons and Complaint)

Request for Entry of Default / Judgment

4/17/2019: Request for Entry of Default / Judgment

DEFENDANTS KAISER FOUNDATION HEALTH PLAN, INC., SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP AND KAISER FOUNDATION HOSPITALS' APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT PURSUANT TO CODE OF

3/20/2018: DEFENDANTS KAISER FOUNDATION HEALTH PLAN, INC., SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP AND KAISER FOUNDATION HOSPITALS' APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT PURSUANT TO CODE OF

STIPULATION RE STAY OF ACTION; ORDER

5/15/2018: STIPULATION RE STAY OF ACTION; ORDER

ORDER DETERMINING GOOD FAITH SETTLEMENT [CCP SECTION 877.6(A)(2)]

5/15/2018: ORDER DETERMINING GOOD FAITH SETTLEMENT [CCP SECTION 877.6(A)(2)]

CASE MANAGEMENT STATEMENT -

6/12/2018: CASE MANAGEMENT STATEMENT -

DEFENDANT BINKO CORP.'S ANSWER TO PLAINTIFFS' UNVERIFIED COMPLAINT FOR DAMAGES

11/6/2017: DEFENDANT BINKO CORP.'S ANSWER TO PLAINTIFFS' UNVERIFIED COMPLAINT FOR DAMAGES

Minute Order -

11/22/2017: Minute Order -

PROOF OF SERVICE SUMMONS -

10/19/2017: PROOF OF SERVICE SUMMONS -

DECLARATION OF DEBORAH Y. MONTICUE TO CONTINUE LEGAL ACTION ON BEHALF OF THE DECEDENT, HOWARD MONTICUE, PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE ? 377.32

5/17/2017: DECLARATION OF DEBORAH Y. MONTICUE TO CONTINUE LEGAL ACTION ON BEHALF OF THE DECEDENT, HOWARD MONTICUE, PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE ? 377.32

Proof of Service -

8/16/2017: Proof of Service -

PLAINTIFF'S OPPOSITION TO DEFENDANTS, KAISER FOUNDATION HEALTH PLAN, INC. SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP, AND KAISER FOUNDATION HOSPITALS DBA KAISER FOUNDATION HOSPITAL LOS ANGELES- HOME

8/25/2017: PLAINTIFF'S OPPOSITION TO DEFENDANTS, KAISER FOUNDATION HEALTH PLAN, INC. SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP, AND KAISER FOUNDATION HOSPITALS DBA KAISER FOUNDATION HOSPITAL LOS ANGELES- HOME

CASE MANAGEMENT STATEMENT -

8/29/2017: CASE MANAGEMENT STATEMENT -

Proof of Service -

9/7/2017: Proof of Service -

SUBSTITUTION OF ATTORNEY -

9/14/2017: SUBSTITUTION OF ATTORNEY -

155 More Documents Available

 

Docket Entries

  • 10/28/2020
  • Hearing10/28/2020 at 08:30 AM in Department 30 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Set Aside/Vacate Default and Default Judgment (CCP 473.5)

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  • 09/25/2020
  • DocketDeclaration (OF BIOSEH OGBECHIE IN SUPPORT OF MOTION TO SET ASIDE ENTRY OF DEFAULT AND DEFAULT JUDGMENT); Filed by Binko Corp (Defendant); Bioseh Ogbechie (Defendant)

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  • 09/24/2020
  • DocketMotion to Set Aside/Vacate Default and / or Default Judgment; Filed by Binko Corp (Defendant); Bioseh Ogbechie (Defendant)

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  • 09/23/2020
  • Docketat 08:30 AM in Department 30, Barbara M. Scheper, Presiding; Hearing on Motion to Set Aside/Vacate Default and Default Judgment (CCP 473.5) - Not Held - Taken Off Calendar by Party

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  • 09/16/2020
  • DocketReply (IN SUPPORT OF MOTION TO SET ASIDE ENTRY OF DEFAULT AND DEFAULT JUDGMENT; DECLARATION OF NICOLAS W. SPIGNER); Filed by Binko Corp (Defendant); Bioseh Ogbechie (Defendant)

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  • 09/10/2020
  • DocketOpposition (Plaintiffs' Opposition to Defendants' Motion to Set Aside Default Judgment); Filed by Deborah Y. Monticue (Plaintiff); Monticur, Howard A., in and through his (Plaintiff)

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  • 08/28/2020
  • DocketMotion to Set Aside/Vacate Default and / or Default Judgment; Filed by Binko Corp (Defendant); Bioseh Ogbechie (Defendant)

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  • 08/12/2020
  • DocketWrit of Execution ((Los Angeles)); Filed by Monticur, Howard A., in and through his (Plaintiff)

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  • 08/11/2020
  • DocketDeclaration (DECLARATION OF MICHAEL SAYER IN SUPPORT OF INTEREST REGARDING WRIT OF EXECUTION); Filed by Monticur, Howard A., in and through his (Plaintiff)

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  • 08/11/2020
  • DocketNotice of Rejection - Post Judgment; Filed by Clerk

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325 More Docket Entries
  • 05/25/2017
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 05/25/2017
  • DocketNotice-Case Management Conference; Filed by Clerk

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  • 05/25/2017
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 05/17/2017
  • DocketComplaint; Filed by Deborah Y. Monticue (Plaintiff); Monticur, Howard A., in and through his (Plaintiff)

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  • 05/17/2017
  • DocketPLAINTIFFS' NOTICE OF POSTING JURY FEES

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  • 05/17/2017
  • DocketSUMMONS

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  • 05/17/2017
  • DocketDECLARATION OF DEBORAH Y. MONTICUE TO CONTINUE LEGAL ACTION ON BEHALF OF THE DECEDENT, HOWARD MONTICUE, PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE 377.32

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  • 05/17/2017
  • DocketCIVIL DEPOSIT

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  • 05/17/2017
  • DocketComplaint

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  • 05/17/2017
  • DocketCOMPLAINT FOR DAMAGES AND REQUEST FOR JURY TRIAL:

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Tentative Rulings

Case Number: BC661809    Hearing Date: October 28, 2020    Dept: 30

Dept. 30

Calendar No.

Monticur, et. al. vs. Bentley Manor by Serenity Care, et. al., Case No. BC661809

Tentative Ruling re: Defendants’ Motion to Vacate Default and Default Judgment

Defendants Binko Corporation (Binko Corp.) and Bioseh Ogbechie (Ogbechie) (collectively Defendants) move the Court to set aside the default and default judgment entered against them pursuant to Code of Civil Procedure 473(d). The motion is denied.

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. (Code Civ. Proc., § 473.5.) Relief must be sought within 2 years of the default judgment or 180 days after service of a written notice that the default judgment has been entered, whichever is earlier. (Code Civ. Proc., § 473.5, subd. (a).)

However, pursuant to Code of Civil Procedure section 473, subdivision (d):

The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.

Service of the Summons and the Complaint

As an initial matter, Defendants argue that Plaintiffs never properly served Defendants with the summons and the complaint. (Motion, at p. 11:4-14.) However, this is not the proper motion to decide whether service of the complaint was correct. Defendants “never moved to quash service of summons. The question of whether service was properly made, therefore, is relevant only as it tends to support the argument that the trial court abused its discretion in denying the motion to set aside the default.” (Khourie, Crew & Jaeger v. Sabek, Inc. (1990) 220 Cal.App.3d 1009, 1012–1013.)

Binko Corp. made its first appearance in this action when it filed an answer on November 6, 2017. (Flint Decl., ¶ 7.) Bioseh Ogbechie made his first appearance in the action when he filed an answer on November 21, 2017. (Flint Decl., ¶ 7.) Defendants made a general appearance thus forfeiting any objection to defective service. (Fireman’s Fund Insurance Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1145.) cured.

The Motion for Terminating Sanctions

Here, on January 14, 2019, Plaintiffs filed a motion for terminating sanctions, seeking to strike the Answers of Defendants, and set the hearing for February 22, 2019. The Motion was served by mail on Defendants at “6300 Owensmouth Avenue, Floor 10, Woodland Hills California 91367.” When Plaintiffs realized they served Defendants at the wrong address, Plaintiffs re-served the motion at the correct address on file with the Court at 6303 Owensmouth Avenue, Floor 10, Woodland Hills, California 91367. Plaintiffs served the motion for terminating sanctions on the correct address on January 24, 2019.

Defendants argue that this service was not timely, because the notice had to have been served 16 court days plus five court days added for service by mail before the hearing, which would be January 22, 2019. However, this is not correct. Five calendar days are added for service by mail, not court days. Sixteen court days plus five calendar days before the February 22, 2019 hearing makes the January 24, 2019 service timely. (Code Civ. Proc., § 1005, subd. (b).)

The Statements of Damages

When a complaint alleges damages for personal injury, the plaintiff must serve on the defendant a statement setting forth the nature and amount of damages being sought before a default may be taken. (Code Civ. Proc., § 425.11, subds. (b), (c); Matera v. McLeod (2006) 145 Cal.App.4th 44, 60 (Matera).) “The purpose of these restrictions on the amounts of damages awarded in a default judgment is to ensure that a defendant is given adequate notice of the amount of the judgment that may be entered against the defendant, as required by due process.” (Matera, supra, 145 Cal.App.4th at p. 61.)

When a defendant has not appeared in the action, the statement shall be served in the same manner as a summons. (Code Civ. Proc., § 425.11, subd. (d)(1).) However, if a defendant has appeared in the action then the statement of damages shall be served upon the party’s attorney, or upon the party if the party has appeared without an attorney, in the manner provided for service of a summons or in the manner provided by Chapter 5 (commencing with Section 1010) of Title 14 of Part 2. (Code Civ. Proc., § 425.11, subd. (d)(2).)

Defendants argue that the statements of damages were required to be served on Defendants before the Court’s order striking their Answers and entering default against them on February 22, 2019.

Plaintiffs served the first statement of damages on August 3, 2017. Service was made on Mr. Valentine. Defendants now claim he was not their registered agent for service at the time and therefore argue that service was ineffective. However, Defendants answered the complaint after that service therefore curing any defect in service. Defendants do not deny receiving the statement of damages that was served along with the summons and complaint on Mr. Valentine. Thus, Defendants had actual notice of the amount of damages Plaintiffs sought well before the entry of default.

Defendants were served by substituted service with a second statement of damages on March 6, 2019. Here, process server James Figueroa is a registered process server. On March 6, 2019 at 3:15 p.m., Mr. Figueroa went to 6303 Owensmouth Avenue, Floor 10, Woodland Hills, California 91367, to serve Defendants with Plaintiffs’ statements of damages. The security guard allegedly refused Mr. Figueroa entrance to the 10th Floor to serve the Defendants so Mr. Figueroa left the papers with the guard. (Plaintiffs’ Exh. 9.) Another process server subsequently mailed the statements of damages to Defendants on March 13, 2020. (Plaintiff’s Exh. 9.)

Defendants argue that service was ineffective because the security guard is not the proper person to accept service. However, a defendant will not be permitted to defeat service by rendering physical service impossible. (Khourie, Crew & Jaeger v. Sabek, Inc. (1990) 220 Cal.App.3d 1009, 1013 (Khourie).). In Khourie, the court held that service of summons and complaint was effectuated by leaving the summons and complaint outside the door of the business office of the corporation when a woman in the office refused to unlock the door and accept service. (Ibid.)

The Court holds that service on the security guard was proper. Moreover, the subsequently mailed statements of damages were properly mailed to the Defendants’ business address.

Defendants argue that the Court must vacate the default judgment here because the statement of damages was served after the Court struck Defendants’ answers and entered their default on February 22, 2019. Defendants argue that Matera is on point. In Matera, the plaintiffs personally served a statement of damages on the defendants’ attorney only two days before the court struck the defendants’ answer and entered their defaults. (Matera, supra, 145 Cal.App.4th at p. 62.) The court held that this notice was insufficient.

This case is distinguishable from Matera. The evidence shows that Defendants were served with the statements of damages twice, the first time on August 3, 2017, and the second time on March 6, 2019. (Flint Decl., ¶¶ 4, 17, Exhs. 5-6.) Defendants were given notice of the order granting terminating sanctions as well as the hearings regarding entry of default judgment. Judgment was not entered until July 29, 2019 and Defendants were given notice of entry of judgment on July 30, 2019. Defendants had ample time to contest the entry of judgment in this matter after service of the statements of damages.

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