This case was last updated from Los Angeles County Superior Courts on 06/04/2019 at 07:13:34 (UTC).

LUIS AMAYA VS CONSUELO MORRISON

Case Summary

On 12/28/2017 LUIS AMAYA filed a Personal Injury - Other Personal Injury lawsuit against CONSUELO MORRISON. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8573

  • Filing Date:

    12/28/2017

  • 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

 

Party Details

Plaintiff and Petitioner

AMAYA LUIS

Defendants and Respondents

DOES 1 TO 20

MORRISON CONSUELO

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

FIORE MAURO JR.

 

Court Documents

Proof of Service of Summons and Complaint

3/13/2018: Proof of Service of Summons and Complaint

Request for Entry of Default / Judgment

10/25/2018: Request for Entry of Default / Judgment

SUMMONS

12/28/2017: SUMMONS

COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

12/28/2017: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

 

Docket Entries

  • 10/25/2018
  • Request for Entry of Default / Judgment; Filed by Luis Amaya (Plaintiff)

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  • 03/13/2018
  • Proof of Service (not Summons and Complaint); Filed by Luis Amaya (Plaintiff)

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  • 03/13/2018
  • Proof of Service of Summons and Complaint

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  • 12/28/2017
  • COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

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  • 12/28/2017
  • SUMMONS

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  • 12/28/2017
  • Complaint; Filed by Luis Amaya (Plaintiff)

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Tentative Rulings

Case Number: BC688573    Hearing Date: January 24, 2020    Dept: 27

[TENTATIVE] ORDER RE: MOTION FOR RECONSIDERATION OF MOTION TO SET ASIDE DEFAULT OR, IN THE ALTERNATIVE, FIRST AMENDED MOTION TO SET ASIDE DEFAULT

On December 28, 2017, plaintiff Luis Amaya filed this action against defendant Conseulo Morrison for general negligence and premises liability. Plaintiff obtained entry of default against Defendant on October 25, 2018. No default judgment has been entered. Defendant previously moved to set aside the default contending Plaintiff did not serve her with the summons and complaint. The Court denied Defendant’s motion without prejudice on the grounds that, while timely, Defendant failed to include the required declaration or proposed answer to be filed in the action under Code of Civil Procedure section 473.5. Defendant moved for reconsideration of the November 22, 2019 order.

The Court continued the hearing on the motion to set aside entry of default to January 24, 2020 at 1:30 p.m. to allow Defendant to file additional evidence to rebut the presumption of service, and Plaintiff to respond. Defendant filed additional declarations on January 9, 2020. Plaintiff filed a response on January 17, 2020.

Defendant is correct that, based on the evidence presented, the proper basis for setting aside the entry of default for lack of service of the summons and complaint is Code of Civil Procedure section 473, subdivision (d), not section 473.5, because Defendant contends she was never properly served with the summons and complaint.

A proof of service by a registered process server created a rebuttal presumption of service. (Evid. Code, § 647.) Plaintiff’s proof of service for the summons and complaint, filed on March 13, 2018, states Defendant was personally served on March 8, 2018 at the address 2728 Cincinnati St., Los Angeles, CA 90033 at 6:37 p.m. The proof of service indicates the person effecting service was a registered process server. Plaintiff also argues that he mailed the Request for Entry of Default to Defendant on October 25, 2018, and the Request for Entry of Default filed with the Court does state Plaintiff mailed the document to Defendant at the 2728 Cincinnati St. address.

Defendant states she had never been served with any papers in this case and did not know about this case until mid-June 2019 when she received some court papers in the mail. She does not give any details about her assertion, such as where she lived and where she was on March 8, 2018 at 6:37 p.m., who else lived with her, whether she knows who lived at the 2728 Cincinnati St. address, how she handles her mail such that she did not receive the Request for Entry of Default, etc. (See, e.g., Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1479-1480.) This alone is insufficient because absent additional details or corroborating evidence, a court is “ ‘not required to accept this self-serving evidence contradicting the process server’s declaration.’ [Citation].” (Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 751.)

Defendant’s son, William Morrison, also submitted a declaration. Plaintiff’s objections to paragraphs 3 and 5 of the Morrison Declaration are sustained. The objections to paragraphs 8 and 9 are overruled. The objection to the last sentence of paragraph 11 is sustained.

Mr. Morrison states that he lives with Defendant at a triplex located at 2728 Cincinnati Street, which he manages, and that the occupants of the other two units include Hispanic women generally within his mother’s age group. He states that his mother is a Hispanic senior citizen. Mr. Morrison is a member of a neighborhood council where he presents reports at regular meetings on the second and third Thursday evenings each month. His mother regularly accompanies him to the meetings and went with him to the March 8, 2018 meeting from 6 p.m. to 8 p.m. He attaches a copy of a meeting agenda from that date, which lists Mr. Morrison on the agenda to give a Budget Advocate Report. Mr. Morrison also states that he handles the mail for the household and did not see any mail concerning this case until mid-June 2019 when he saw the request for a default judgment. This evidence is sufficient to rebut the presumption that Defendant was served with the complaint on March 8, 2018 at 6:37 p.m. at the 2728 Cincinnati St. address.

Plaintiff argues that the Court cannot grant the motion for reconsideration because Plaintiff presented no new facts, circumstances, or law. However, the Court can correct its mistakes. (Hover v. v. MacKenzie (1854) 122 Cal.App.2d 852, 857 [“There is no impropriety or error in a judge reversing himself if he later concludes he was wrong the first time. He would stultify himself if he did otherwise. The motion to reconsider was in effect a renewal of the motion to vacate and set aside the default and the judgment”].)

Plaintiff next argues that the Court cannot consider additional evidence. Plaintiff cites to Marriage of Herr (2009) 174 Cal.App.4th 1463, where after a trial, the court ordered a new hearing on additional evidence, which the appellate court concluded was effectively a new trial. (Id. at p. 1468.) This contravened the rules for moving for a new trial. (Id. at pp. 1468-1469.) The right to a new trial is purely statutory and the procedural steps “are mandatory and must be strictly followed.” (Id. at p. 1471.) The Herr court cited Marriage of Barthold (2008) 158 Cal.App.4th 1301. In that case, too, the court made a decision on the merits and then realized it had made a mistake and reversed its decision. In contrast, here, there was no trial or evidentiary hearing, and therefore the procedures for new trials and reasoning of that case are not applicable. The Court did not rule on the merits of the original motion because it incorrectly concluded that Defendant had not followed the proper procedure in bringing the motion. Thus, this is not a situation of a court reconsidering a ruling on the merits. Rather, here the Court is considering the merits for the first time.

Plaintiff argues that in ruling on a motion brought under Code of Civil Procedure section 473, subdivision (d) based on the contention the defendant had not been properly served with the summons and complaint, the Court cannot request additional evidence and continue the hearing. Plaintiff cites no legal authority for this position. The law favors deciding cases on their merits, and the entry of default and a default judgment would bar Defendant from litigating Plaintiff’s claims on their merits. In a situation where Defendant’s right to contest Plaintiff’s claims on their merits may be cut off, more rather than less evidence is helpful.

Plaintiff contends the Court cannot vacate or set aside an entry of default under section 473, subdivision (d) because that section refers only to “any void judgment or order” and not to entries of default. When a defendant has not been served with the summons and complaint according to the statutory procedures for service of process, the court lacks personal jurisdiction over the defendant, and a default judgment entered against that defendant is void. (Calvert v. Al Binali (2018) 29 Cal.App.5th 954, 961.) “Void judgments are ineffective and unenforceable.” (Ibid.) When a court does not have jurisdiction due to lack of proper service of summons such that it cannot enter a default judgment against the plaintiff, the court must also lack jurisdiction to enter default in the first place. (See Rogers v. Silverman (216 Cal.App.3d 1114, 1126 [“where there has been no service at all . . . no omission on the moving party’s part resulted in the clerk’s entry of default”].)

Finally, Plaintiff argues that when a party moves to vacate a judgment that is facially valid, the motion must be made within six months of the entry of the judgment. That is not quite correct. “Where a party moves under section 473, subdivision (d) to set aside ‘a judgment that, though valid on its face, is void for lack of proper service, the courts have adopted by analogy the statutory period for relief from a default judgment’ provided by section 473.5, that is the two-year outer limit.” (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180; Rogers, supra, 216 Cal.App.3d at p. 1126.) The cases Plaintiff cites did not concern a judgment that was void for lack of proper service of the summons and complaint, as is the contention here.

For these reasons, the motion is GRANTED, and the entry of default is set aside. The Court sets a trial date of December 18, 2020 at 8:30 a.m. in Department 27, and a Final Status Conference date of December 4, 2020 at 10:00 a.m. in Department 27.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT4B@lacourt.org indicating intention to submit on the tentative.

Case Number: BC688573    Hearing Date: December 27, 2019    Dept: 4B

[TENTATIVE] ORDER RE: MOTION FOR RECONSIDERATION OF MOTION TO SET ASIDE DEFAULT OR, IN THE ALTERNATIVE, FIRST AMENDED MOTION TO SET ASIDE DEFAULT

On December 28, 2017, plaintiff Luis Amaya filed this action against defendant Conseulo Morrison for general negligence and premises liability. Plaintiff obtained entry of default against Defendant on October 25, 2018. No default judgment has been entered. Defendant previously moved to set aside the default contending Plaintiff did not serve her with the summons and complaint. The Court denied Defendant’s motion without prejudice on the grounds that, while timely, Defendant failed to include the required declaration or proposed answer to be filed in the action under Code of Civil Procedure section 473.5. Defendant now moves for reconsideration of the November 22, 2019 order.

Defendant is correct that, based on the evidence presented, the proper basis for setting aside the entry of default for lack of service of the summons and complaint is Code of Civil Procedure section 473, subdivision (d). Accordingly, the motion for reconsideration is GRANTED.

Plaintiff’s proof of service for the summons and complaint, filed on March 13, 2018, states Defendant was personally served on March 8, 2018 at the address 2728 Cincinnati St., Los Angeles, CA 90033 at 6:37 p.m. The proof of services indicates the person effecting service was a registered process server. Plaintiff also argues that he mailed the Request for Entry of Default to Defendant on October 25, 2018, and the Request for Entry of Default filed with the Court does state Plaintiff mailed the document to Defendant at the 2728 Cincinnati St. address. Defendant states she had never been served with any papers in this case and did not know about this case until mid-June 2019 when she received some court papers in the mail.

A proof of service by a registered process server created a rebuttal presumption of service. (Evid. Code, § 647.) Defendant merely states in her declaration that she was never served and did not know about this case until mid-June 2019. She does not give any details about her assertion, such as where she lived and where she was on March 8, 2018 at 6:37 p.m., who else lived with her, whether she knows who lived at the 2728 Cincinnati St. address, how she handles her mail such that she did not receive the Request for Entry of Default, etc. (See, e.g., Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1479-1480.) Absent additional details or corroborating evidence, a court is “ ‘not required to accept this self-serving evidence contradicting the process server’s declaration.’ [Citation].” (Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 751.)

Accordingly, the Court continues the hearing on the motion to set aside entry of default to January 24, 2020 at 1:30 p.m. If Defendant has additional evidence to rebut the presumption of service, Defendant shall file a declaration by January 10, 2020. Plaintiff may file a response by January 20, 2020. All service is to be electronic pursuant to California Rule of Court 2.251(c)(3).

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT4B@lacourt.org indicating intention to submit on the tentative.

Case Number: BC688573    Hearing Date: November 22, 2019    Dept: 4B

[TENTATIVE] ORDER RE: MOTION TO SET ASIDE DEFAULT

On December 28, 2017, Plaintiff Luis Amaya (“Plaintiff”) filed this action against Defendant Consuelo Morrison (“Defendant”) for general negligence and premises liability. Plaintiff obtained entry of default against Defendant on October 25, 2018. No default judgment has been entered. Defendant now seeks to set aside the default contending Plaintiff did not serve her with the Summons and Complaint. Defendant argues the entry of default is void because she was not served, but she does not cite to the applicable statute for setting aside defaults due to a lack of notice of the summons and complaint.

When service of a summons has not resulted in actual notice to a party in time to defend the action and a default has been entered against her, the party may move to set aside default and for leave to defend the action. (Code Civ. Proc., § 473.5, subd. (a).) The motion must be made no later than two years after entry of default or 180 days after service of a written notice that default has been entered. (Ibid.) The party seeking to set aside the default must file a declaration that the party’s lack of actual notice was not caused by her avoidance of service or inexcusable neglect, and the party must serve and file a copy of the answer, motion, or other pleading proposed to be filed in the action. (Code Civ. Proc., § 473.5, subd. (b).)

Defendant’s motion was timely filed but did not include the required declaration or proposed answer, motion, or other pleading proposed to be filed in the action. Accordingly, the motion is DENIED without prejudice.

Moving party to give notice of this ruling.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT4B@lacourt.org indicating intention to submit on the tentative.