On 11/20/2017 PEDRO A ORTIZ filed a Personal Injury - Other Personal Injury lawsuit against PERFORMANCE FOOD GROUP INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is JON R. TAKASUGI. The case status is Other.
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
JON R. TAKASUGI
ORTIZ PEDRO A.
PERFORMANCE FOOD GROUP INCORPORATION
DOES 1 TO 50
MAYA MOTOR CARRIERS INCORPORATION
MAYA MOTOR CARRIERS INCORPORATION
MARINOS DIONISIOS ESQ.
HAIGHT BROWN & BONESTEEL LLP
DUBRAWSKI PETER ANDREW
5/20/2019: Request for Dismissal
5/20/2019: Minute Order
5/6/2019: Minute Order
3/25/2019: Proof of Personal Service
5/2/2019: Notice of Ruling
5/3/2019: Request for Dismissal
5/6/2019: Request for Dismissal
5/23/2018: RESPONSE OF DEFENDANT, PERFORMANCE FOOD GROUP, INC. TO COMPLAINT FOR DAMAGES
6/5/2018: STIPULATION TO STRIKE EXEMPLARY DAMAGES ALLEGATIONS AND PRAYER FROM PLAINTIFF'S COMPLAINT AS TO DEFENDANT, PERFORMANCE FOOD GROUP, INC., ONLY; (PROPOSED) ORDER
11/20/2017: COMPLAINT FOR DAMAGES 1) NEGLIGENCE ;ETC
at 08:30 AM in Department 3, Jon R. Takasugi, Presiding; Order to Show Cause Re: Dismissal (of Cross-Complaint filed by Performance Food Group) - Held - ContinuedRead MoreRead Less
at 08:30 AM in Department 3, Jon R. Takasugi, Presiding; Final Status Conference - Not Held - Vacated by CourtRead MoreRead Less
at 08:30 AM in Department 3, Jon R. Takasugi, Presiding; Jury Trial - Not Held - Vacated by CourtRead MoreRead Less
at 08:30 AM in Department 3, Jon R. Takasugi, Presiding; Order to Show Cause Re: Dismissal (of Defendant Performance Food Group) - HeldRead MoreRead Less
Request for Dismissal; Filed by PERFORMANCE FOOD GROUP, INCORPORATION (Cross-Complainant)Read MoreRead Less
Minute Order ( (Jury Trial; Order to Show Cause Re: Dismissal of Defendant Pe...)); Filed by ClerkRead MoreRead Less
at 10:00 AM in Department 3, Jon R. Takasugi, Presiding; Final Status Conference - Not Held - Continued - Court's MotionRead MoreRead Less
Certificate of Mailing for (Minute Order (Final Status Conference) of 05/06/2019); Filed by ClerkRead MoreRead Less
Minute Order ( (Final Status Conference)); Filed by ClerkRead MoreRead Less
Notice (Notice of OSC re Dismissal); Filed by PERFORMANCE FOOD GROUP, INCORPORATION (Cross-Complainant); PERFORMANCE FOOD GROUP, INCORPORATION (Defendant)Read MoreRead Less
Cross-Complaint; Filed by PERFORMANCE FOOD GROUP, INCORPORATION (Defendant)Read MoreRead Less
Summons Issued; Filed by PERFORMANCE FOOD GROUP, INCORPORATION (Defendant)Read MoreRead Less
CROSS-COMPLAINT OF PERFORMANCE FOOD GROUP, INC. FOR: (1) EXPRESS CONTRACTUAL INDEMNITY; (2) IMPLIED INDEMNITY; (3) CONTRIBUTION; (4) COMPARATIVE FAULT; AND (5) DECLARATORY RELIEFRead MoreRead Less
RESPONSE OF DEFENDANT, PERFORMANCE FOOD GROUP, INC. TO COMPLAINT FOR DAMAGESRead MoreRead Less
Cross-Complaint (of Performance Food Group, Inc. for: (1) Express Contractual Indemnity; (2) Implied Indemnity; (3) Contribution; (4) Comparative Fault; and (5) Declaratory Relief); Filed by PERFORMANCE FOOD GROUP, INCORPORATION (Cross-Complainant)Read MoreRead Less
SUMMONSRead MoreRead Less
COMPLAINT FOR DAMAGES 1) NEGLIGENCE ;ETCRead MoreRead Less
SUMMONSRead MoreRead Less
ORDER ON COURT FEE WAIVERRead MoreRead Less
Complaint; Filed by PEDRO A. ORTIZ (Plaintiff)Read MoreRead Less
Case Number: BC684304 Hearing Date: January 10, 2020 Dept: 32
SPEEDY FUEL, INC.,
GILBARCO, INC, et. al.
Case No.: BC648304
Hearing Date: January 10, 2020
[TENTATIVE] order RE:
motion to set aside default judgment against rey a. alvarado
This action arises out of failed credit card and debit card transaction systems at two fuel service stations operated by Plaintiff Speedy Fuel, Inc. (“Plaintiff”). The defendants in this action include (1) the software developer for the transaction systems Gilbarco, Inc. (“Gilbarco”), (2) several banking institutions including Bank of America, N.A. (“BANA”), JPMorgan Chase Bank, N.A. (“Chase”), Citibank, N.A. (“Citibank”), Wells Fargo Bank, N.A. (“Wells Fargo”), U.S. Bank, N.A. (“US Bank”), East West Bank (“East West”), and San Diego County Credit Union (“SDCCU”) (collectively, “Banks”), (3) businesses that process credit and debit card transactions including Banc of America Merchant Services, LLC (“BAMS”), Bank of America Corporation (“BAC”), First Data Corporation (“First Data”), and Interlink Network Inc. (“Interlink”) (collectively, “Processor Defendants”), and (4) numerous customers that bought fuel from Plaintiff.
The operative pleading is the First Amended Complaint (“FAC”) filed on August 30, 2017. The FAC asserts causes of action for (1) breach of contract against all Defendants except Gilbarco and Interlink, (2) goods sold and delivered against all Defendants except Gilbarco and Interlink, (3-20) fraud against various Defendant Customers, (21) breach of implied warranty of fitness for a particular purpose against Gilbarco, (22) inducing breach of contract against Gilbarco, (23) negligent interference with prospective economic relations against Gilbarco, (24) inducing breach of contract against BAMS, BAC, First Data and Interlink, (25) intentional interference with contractual relations against BAMS, BAC, First Data and Interlink, (26) negligent misrepresentation against BAMS, BAC, and First Data, and (27) breach of fiduciary duty against BANA. BANA’s demurrer to Plaintiff’s twenty-seventh cause of action was sustained without leave to amend.
On September 6, 2018, a registered process server sub-served process on Rey A. Alvarado (“Alvarado”) by leaving the documents with Jose Doe, a co-occupant of Alvarado’s home. (Martin Decl. Ex. A.) On March 12, 2019, default was entered against Alvarado. (Martin Decl. Ex. B.) On August 22, 2019, default judgment was entered against Alvarado in the amount of $13,222.64, plus interest.
Alvarado moves to set aside the default judgment entered against him in this case pursuant to (1) CCP section 473(b), (2) CCP section 473.5, (3) CCP section 473(d), and (4) the Court’s inherent equity power.
In support, Alvarado declares that he was not personally served in this case. (Alvarado Decl. ¶ 2.) Alvarado states that he received a notice in the mail at his home informing him that he lost this case. (Alvarado Decl. ¶ 4.) Alvarado states that he visited the courthouse and learned that a default had been entered against him. (Alvarado Decl. ¶ 8.) Alvarado states that his excuse for not filing an answer is that he did not know that he needed to do so in writing. (Alvarado Decl. ¶ 9.)
CCP section 473(b) states in pertinent part that a court may “relieve a party … from a judgment … taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” “To determine whether the mistake or neglect was excusable, ‘... the court inquires whether “a reasonably prudent person under the same or similar circumstances” might have made the same error....’ ” (Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1399.) “[M]ere self-representation is not a ground for exceptionally lenient treatment. Except when a particular rule provides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-85.)
Alvarado’s reliance on CCP section 473(b) is unavailing. Failing to answer the FAC based on a misunderstanding that the answer needs to be in writing is inexcusable. A reasonably prudent person would not make this mistake because, inter alia, the Summons expressly states: “You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy served on the plaintiff.” (Emphasis added.)
CCP section 473.5 states in pertinent part that “[w]hen 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.” “Actual notice” for purposes of this statue means “genuine knowledge.” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 547.) A motion under this statute must “be accompanied by an affidavit showing under oath that the party’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect.” (CCP § 473.5(b).)
Alvarado’s reliance on CCP section 473.5 is unavailing because he has not submitted a declaration attesting that he lacked actual notice of this action or attesting that this lack of notice was not caused by his avoidance of service or inexcusable neglect. Indeed, Alvarado’s excuse for not answering the FAC — that he did not know that he needed to respond in writing — indicates that he did have genuine knowledge of this action, just not a correct understanding as to how to respond.
CCP section 473(d) allows a court to “set aside any void judgment or order.” Under CCP section 473(d), a court may set aside a default judgment which is valid on its face but void as a matter of law due to improper service of process. (Ellard, supra, 94 Cal.App.4th at 544.) Alvarado’s request for relief under this state fails because he has not shown that service of process was improper. A process server filed a proof of service which is presumptively valid. “[A] registered process server’s declaration of service establishes a presumption affecting the burden of producing evidence of the facts stated in the declaration.” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390 (citing Evid. Code § 647).) Corroborating this presumption, the place where substituted service was effected — 652 South Arizona Avenue, East Los Angeles, CA 90022 — is the same place that Alvarado specifies as his address on his memorandum in support of this motion.
Finally, courts do have inherent equity authority to vacate a judgment on equitable grounds such as extrinsic fraud or mistake. (Bae v. T.D. Service Co. of Arizona (2016) 245 Cal.App.4th 89, 97.) However, Alvarado has not substantiated extrinsic fraud or mistake or articulated a theory as to why extrinsic fraud or mistake should be found.
Alvarado’s motion to set aside the default judgment is DENIED. The Court is not imposing a monetary penalty upon Alvarado.