LACEY C SCULLS ET AL VS TIFFANY LOWE ET AL

Tentative Rulings

Case Number: BC665786    Hearing Date: March 9, 2021    Dept: 29

Jonny Sculls, et al. v. Tiffany Lowe, et al.

Defendant Tiffany Lowe’s Motion to Set Aside Default is GRANTED. The default entered against Defendant Lowe on 12/4/19 is vacated. Defendant Lowe is ordered to file and serve her answer within 5 days.

At issue are two consolidated actions. In Plaintiff Lacey C. Sculls’ and Jonny Sculls’ operative first amended complaint (Case No. BC665786), the Sculls allege that on January 29, 2017 they were patrons at Bar Sinister, a weekly nightclub owned, operated and managed by Defendant Boardners in Hollywood. They allege that while they were there they were physically attacked by Defendants Tiffany Lowe and Tim Skold. They assert claims for assault and battery against Lowe and Tim Skold and a premises liability claim against Boardners. Default had been entered against Lowe on December 4, 2019. On July 31, 2020, at Plaintiffs’ request, the claims against Tim Skold were dismissed. Only the Sculls’ premises liability claims against Boardners remained. 

On March 1, 2019, Tim Skold filed a cross-complaint against the Sculls. The cross-complaint has been dismissed. 

In a separate consolidated action (Case No. 19STCV03569), Plaintiff Erin Skold also alleges that she was injured in the altercation and asserts claims for assault and battery against the Sculls and a premises liability claim against Boardners. 

On May 20, 2019, the Court deemed the two cases related, and ordered the cases consolidated on August 13, 2019. 

On August 27, 2020, the Court granted Defendant Boardners’ motion for summary judgment against Plaintiffs Johnny Sculls and Lacey Sculls in case number BC665786 and Plaintiff Erin Skold in case number 19STCV03569. Judgment was entered in favor of Boardners, Inc. against Plaintiffs Jonny Sculls and Lacey Sculls, in case number BC665786, and Plaintiff Erin Skold, in case number 19STCV03569, on December 4, 2020. 

Defendant Tiffany Lowe now moves pursuant to Code of Civil Procedure Section 473.5 to set aside default entered against her on December 4, 2019. Defendant Lowe contends that service of the summons and complaint did not result actual notice in time for Defendant to defend this action. 

Here, Defendant attests that she first learned that she was named as a defendant in this case in November, 2020. Lowe Decl., ¶ 1. Defendant states that from February 24, 2018 to October 27, 2018, she resided at the Villas at Fashion Island, located at 1000 San Joaquin Hills Road, Apt. 6413, Newport Beach, California 92660. Lowe Decl., ¶ 2. From October 27, 2018 to October 1, 2019, Plaintiff moved and resided at 1781 S. Campton Ave., Apt. S219, Anaheim, CA 92805. Lowe Decl., ¶ 3. From October 9, 2019 to present, Defendant has been residing at 1725 Auburn Way, Apt. 403, Anaheim, CA 92805. Lowe Decl., ¶ 4. 

On August 15, 2019, the Court ordered service on Defendant Lowe by publication through the Los Angeles Daily Journal. Defendant contends that she never received notice of this publication because she has lived in Orange County for the past three years, and does not live or do business in Los Angeles County. Lowe Decl., ¶¶ 6, 8. 

In opposition, Plaintiffs first argues that Defendant Lowe did not file her motion to set aside default almost one year after her default was entered, and is thus untimely under Code of Civil Procedure section 473.5, subdivision (a).

Default judgment has not yet been entered against Defendant Lowe, and thus, Defendant had 180 days after service on her of a written notice that default had been entered against her. Cal. Code Civ. Proc., § 473.5, subd. (a). However, the Court’s records do not demonstrate that Defendant Lowe was served with written notice that default had been entered against her. Likewise, Plaintiffs fail to show that they ever served Defendant Lowe with written notice that default had been entered against her. Thus, the 180-day deadline for Defendant to file her motion pursuant to Section 473.5, subdivision (a), does not appear to have been triggered.

Plaintiffs next argue that Defendant has failed to show that service by publication was otherwise improper or defective. Plaintiffs also argue that Tim Skold had testified at his deposition that he has had contact with Defendant Lowe and discussed the lawsuit against them on several occasions. However, Plaintiffs’ arguments are unavailing because Defendant seeks relief under Code of Civil Procedure Section 473.5, subdivision (a), which is designated to provide relief where there may have been proper service of summons, but the defendant nevertheless lacked actual notice in time to defend. See Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180 [“Thus, a party can make a motion [under Section 473.5] showing a lack of actual notice not caused by avoidance of service or inexcusable neglect, but such motion must be made no later than two years after entry of judgment, and the party must act with diligence upon learning of the judgment.”]. Although Plaintiffs argue that the deposition testimony of Tim Skold and that Defendant’s Lowe’s social media posts suggest that she was in contact with other parties to this action for her to be made aware of this lawsuit, constructive or imputed notice is not sufficient. Rosenthal v. Garner (1983) 142 Cal.App.3d 891, 895; see also Olvera v. Olvera (1991) 232 Cal.App.3d 32, 40 [“We hold that if the court has acquired jurisdiction, i.e., summons has been served, but service of summons has not resulted in actual notice to a defendant, although the defendant has acquired actual knowledge of the action from another source, this does not preclude a defendant from seeking relief under section 473.5.”].

Finally, Plaintiffs contend that Defendant Lowe has failed to prove lack of avoidance of service or inexcusable neglect. The Court disagrees. The undisputed facts show that Defendant resided and did business in Orange County since February 2018. Lowe Decl., ¶¶ 2-4. Thus, service on Defendant Lowe by publication through the Los Angeles Daily Journal did not reach Defendant because she has lived in Orange County for the past three years, and does not live or do business in Los Angeles County. Lowe Decl., ¶¶ 6, 8. Defendant attests that she first learned that she was named as a defendant in this case in November, 2020. Lowe Decl., ¶ 1. Defendant’s declaration shows Defendant’s lack of actual notice of the action in time to defend, that such lack was not caused by her avoidance of service or inexcusable neglect, and that Defendant acted diligently in attempting to defend against this action upon receiving actual notice.

The Court finds that Defendant’s motion is otherwise properly presented, as Defendant has filed with its notice of motion a copy of her proposed answer. Cal. Civ. Proc., § 473.5, subd. (b).) 

Defendant’s motion to vacate default under the circumstances is supported by this “statute’s long-standing “remedial” purpose of promoting the determination of actions on their merits. Thompson v. Sutton (1942) 50 Cal.App.2d 272, 276, citing Nicoll v. Weldon (1900) 130 Cal. 666, 667. 

Accordingly, the default entered against Defendant Lowe is vacated. Defendant Lowe is ordered to file and serve her answer within 5 days. 

Moving party is ordered to give notice.

Case Number: BC665786    Hearing Date: August 05, 2020    Dept: 29

Sculls, et al. v. Lowe, et al.  & consolidated action

The Court does not issue a tentative ruling.  It does not appear that the Declaration of Erin Skold in Support of her Opposition to Defendant Boardners, Inc.'s Motion for Summary Judgment has been filed.  Although such a declaration is included on the docket, the document that was actually filed with that title is a proof of service.  It appears that Ms. Skold's declaration was served, however, since it is listed on the proof of service and since Defendant Boardners filed objections to it. 

If Ms. Skold would like the Court to consider her declaration, the declaration must be electronically filed immediately and a courtesy copy delivered to Department 29. 

Case Number: BC665786    Hearing Date: March 02, 2020    Dept: 29

Sculls et al. v. Lowe et al.

Defendant’s Motion to Compel Plaintiffs to Sign Authorizations Re: Written Release of their Psychological Records; Request for Sanctions is DENIED.

Defendant seeks an order compelling Plaintiffs to sign authorizations for the release of their psychological records. Defendant has not cited any authority that gives the Court discretion to require Plaintiffs to sign authorizations for the release of their psychological records. The Court cannot create new methods of discovery that are not set forth in the Discovery Act. The Court’s powers are limited by the express language of the Act.

In Holm v. Superior Court (1986) 187 Cal.App.3d 1241, the court refused to order a body exhumed for purposes of autopsy finding no legal authority in the statutory discovery scheme to so order “in the absence of express statutory language … .” Holm at 1248-1249.

The Holm court held that “in the area of civil discovery, the judiciary has no power to create or sanction types or methods of discovery not based on a reasonable interpretation of statutory provisions.” Holm v. Superior Court (1986) 187 Cal.App.3d 1241, 1247.

Similarly, in Volkswagenwerk Aktiengesellschaft v. Superior Court (1981) 123 Cal.App.3d 840, the court concluded that a trial court could not issue an order permitting the plaintiffs to conduct informal interviews of Defendant’s employees while inspecting Defendant’s premises, as no statute in the Discovery Act provided for such a method of discovery. Id. at 849.

California courts have declined to permit discovery not authorized by the Legislature in the Discovery Act. Thus, in Edmiston v. Superior Court (1978) 22 Cal.3d 699, the court declined to permit videotaping of a medical examination, holding it was not affirmatively authorized by the Legislature, and whether it was permissible was an issue for the Legislature to determine. Id. at 704.

Defendant may well be entitled to production of these records either through a subpoena served on Mindia Gabichvadze, Psy.D. or, to the extent the records are in the “control” of Plaintiffs, through a request for the production of documents served on Plaintiffs. Those issues are not before the Court, and the Court therefore does not rule on them.

Moving party is ordered to give notice.