Search

Attributes

This case was last updated from Los Angeles County Superior Courts on 05/29/2019 at 02:55:32 (UTC).

ZENITH ACCOUNT SERVICES LLC VS WEALTH CREATING INVESTMETNS E

Case Summary

On 03/14/2017 ZENITH ACCOUNT SERVICES LLC filed a Contract - Debt Collection lawsuit against WEALTH CREATING INVESTMETNS E. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is DALILA CORRAL LYONS. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4102

  • Filing Date:

    03/14/2017

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Contract - Debt Collection

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

DALILA CORRAL LYONS

 

Party Details

Plaintiff and Petitioner

ZENITH ACCOUNT SERVICES LLC

Defendants and Respondents

WEALTH CREATING INVESTMENTS LLC

CONLEY MICHAEL

DOES 1 TO 10

WEALTH CREATING INVESTMENTS

WADDELL ETHAN

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

SLATES RONALD P. ESQ.

 

Court Documents

DECLARATION OF SUSAN L. SELSER, E.A., IN SUPPORT OF PLAINTIFF'S REQUEST FOR DEFAULT JUDGMENT

2/23/2018: DECLARATION OF SUSAN L. SELSER, E.A., IN SUPPORT OF PLAINTIFF'S REQUEST FOR DEFAULT JUDGMENT

DECLARATION OF JOSHUA P. FRIEDMAN, ESQ., IN SUPPORT OF PLAINTIFF'S REQUEST FOR DEFAULT JUDGMENT AGAINST DEFENDANTS

2/23/2018: DECLARATION OF JOSHUA P. FRIEDMAN, ESQ., IN SUPPORT OF PLAINTIFF'S REQUEST FOR DEFAULT JUDGMENT AGAINST DEFENDANTS

Unknown

2/23/2018: Unknown

JUDGMENT

3/21/2018: JUDGMENT

REQUEST FOR ENTRY OF DEFAULT

3/21/2018: REQUEST FOR ENTRY OF DEFAULT

PROOF OF SERVICE BY FIRST-CLASS MAIL?CIVIL

3/21/2018: PROOF OF SERVICE BY FIRST-CLASS MAIL?CIVIL

NOTICE OF ENTRY OF JUDGMENT OR ORDER

3/23/2018: NOTICE OF ENTRY OF JUDGMENT OR ORDER

AMENDED PROOF OF SERVICE OF SUMMONS

11/28/2017: AMENDED PROOF OF SERVICE OF SUMMONS

AMENDED PROOF OF SERVICE OF SUMMONS

11/28/2017: AMENDED PROOF OF SERVICE OF SUMMONS

PROOF OF SERVICE BY FIRST-CLASS MAIL-CIVIL

1/26/2018: PROOF OF SERVICE BY FIRST-CLASS MAIL-CIVIL

Minute Order

1/26/2018: Minute Order

Minute Order

10/30/2017: Minute Order

ORDER TO SHOW CAUSE HEARING

4/18/2017: ORDER TO SHOW CAUSE HEARING

Minute Order

6/8/2017: Minute Order

NOTICE OF CONTINUANCE OF CASE MANAGEMENT CONFERENCE AND ORDER TO SHOW CAUSE AND NOTICE OF DISCLOSURE

6/20/2017: NOTICE OF CONTINUANCE OF CASE MANAGEMENT CONFERENCE AND ORDER TO SHOW CAUSE AND NOTICE OF DISCLOSURE

PROOF OF SERVICE SUMMONS

6/22/2017: PROOF OF SERVICE SUMMONS

REQUEST FOR ENTRY OF DEFAULT

7/11/2017: REQUEST FOR ENTRY OF DEFAULT

NOTICE RE: CONTINUANCE OF HEARING

7/12/2017: NOTICE RE: CONTINUANCE OF HEARING

41 More Documents Available

 

Docket Entries

  • 06/04/2018
  • Assignment of Judgment; Filed by Zenith Account Services, LLC (Plaintiff)

    Read MoreRead Less
  • 06/04/2018
  • ACKNOWLEDGMENT OF ASSIGNMENT OF JUDGMENT

    Read MoreRead Less
  • 05/11/2018
  • at 08:30 AM in Department 20; Unknown Event Type - Not Held - Advanced and Vacated

    Read MoreRead Less
  • 03/23/2018
  • Notice of Entry of Judgment; Filed by Plaintiff/Petitioner

    Read MoreRead Less
  • 03/23/2018
  • NOTICE OF ENTRY OF JUDGMENT OR ORDER

    Read MoreRead Less
  • 03/21/2018
  • at 10:00 AM in Department 20; (Notice of Entry of Judgment mailed; Order of Dismissal) -

    Read MoreRead Less
  • 03/21/2018
  • PROOF OF SERVICE BY FIRST-CLASS MAIL CIVIL

    Read MoreRead Less
  • 03/21/2018
  • Declaration; Filed by Zenith Account Services, LLC (Plaintiff)

    Read MoreRead Less
  • 03/21/2018
  • DECLARATION OF SUSAN L. SELSER, E.A., IN SUPPORT OF PLAINTIFF S REQUEST FOR DEFAULT JUDGMENT

    Read MoreRead Less
  • 03/21/2018
  • Partial Dismissal (w/o Prejudice); Filed by Zenith Account Services, LLC (Plaintiff)

    Read MoreRead Less
83 More Docket Entries
  • 06/08/2017
  • Miscellaneous-Other; Filed by Court

    Read MoreRead Less
  • 06/08/2017
  • Minute Order

    Read MoreRead Less
  • 04/18/2017
  • Notice of Case Management Conference; Filed by Clerk

    Read MoreRead Less
  • 04/18/2017
  • OSC-Failure to File Proof of Serv; Filed by Clerk

    Read MoreRead Less
  • 04/18/2017
  • ORDER TO SHOW CAUSE HEARING

    Read MoreRead Less
  • 04/18/2017
  • NOTICE OF CASE MANAGEMENT CONFERENCE

    Read MoreRead Less
  • 03/27/2017
  • SUMMONS

    Read MoreRead Less
  • 03/14/2017
  • COMPLAINT FOR: 1. BREACH OF CONTRACT ;ETC

    Read MoreRead Less
  • 03/14/2017
  • NOTICE OF RESERVATION OF RIGHT TO SEEK PUNITIVE DAMAGES ON DEFAULT JUDGMENT. C.C.P. 425.115

    Read MoreRead Less
  • 03/14/2017
  • Complaint; Filed by Zenith Account Services, LLC (Plaintiff)

    Read MoreRead Less

Tentative Rulings

Case Number: BC654102    Hearing Date: October 22, 2020    Dept: 20

Tentative Ruling

Judge David J. Cowan

Department 20


Hearing Date: Thursday, October 22, 2020

Case Name: Zenith Account Servs., LLC. v. Wealth Creating Investments et al.

Case No.: BC654102

Motion: Set Aside/Vacate Default and Default Judgment

Moving Party: Defendant Ethan Waddell

Responding Party: Plaintiff Zenith Account Services, LLC

Notice: OK


Ruling: The Motion to Set Aside Default and Default Judgment is

DENIED.

Plaintiff to give notice.

If the parties do not submit on the tentative, they are encouraged to appear by LA Court Connect rather than in person.


 

BACKGROUND

On March 14, 2017, Plaintiff Zenith Account Services, LLC filed a Complaint against Defendants Wealth Creating Investments, Wealth Creating Investments LLC, Ethan Waddell, Michael Conley, and unnamed Does, stating claims for breach of contract, fraudulent inducement, fraudulent misrepresentation, and conversion arising out of Plaintiff’s purchase of a portfolio of commercial receivable accounts purportedly (but not actually) based in California.

On June 20, 2017, Plaintiff filed a proof of personal service of the summons and complaint on Waddell.

On July 11, 2017, Plaintiff filed a Request for Entry of Default against Waddell. The clerk entered Waddell’s default.

On March 21, 2018, the Court entered default judgment against Waddell for $34,036.69.

On August 28, 2020, over two years after entry of default judgment and over three years after entry of default, Waddell filed a Motion to Set Aside the Default and Default Judgment.

On October 8, 2020, Plaintiff filed an Opposition.

 

DISCUSSION

Applicable Law

Under CCP sec. 473(b), the Court “may, upon any terms as may be just, relieve a party . . . from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” The party seeking relief from default “bears the burden of proof in establishing a right to relief.” (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410.) The moving party must show both “a satisfactory excuse for his default, and . . . diligence in making the motion after discovery of the default.” (Id.Huh v. Wang (2007) 158 Cal.App.4th 1406, 1420.) The moving party must show “that due to some mistake, either of fact or of law, of himself or of his counsel, or through some inadvertence, surprise or neglect which may properly be considered excusable, the judgment or order from which he seeks relief should be reversed.” (Kendall v. Barker (1988) 197 Cal.App.3d 619, 623-24.)

A motion to set aside default “shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (CCP sec. 473(b).) Critically, “[t]he six-month time limit for granting statutory relief is jurisdictional and the court may not consider a motion for relief made after that period has elapsed.” (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.) “The six-month time limit is mandatory; a court has no authority to grant relief under Section 473, subdivision (b) unless an application is made within the six-month period.” (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340.)

Application to Facts

Defendant Waddell invokes the discretionary relief provision, citing five grounds for setting aside the default and default judgment against him. First, Waddell argues he “was never properly served” because “[t]here are multiple names and addresses listed that we haven't been affiliated with for years” and “parties named that were not involved in any contractual agreement with the plaintiff.” (Waddell Decl.) Second, Waddell argues the subject “contract was between two legal entities. . . . [w]hich protects from liability personally for both Defendant & Plaintiff under most circumstances.” (Waddell Decl.) Third, Waddell argues that “[b]oth Defendant and Plaintiff signed a contractual agreement stating that any disputes arising from the agreement would be subject to the state of Nevada,” arguing this California trial court lacked jurisdiction to enter default judgment. (Waddell Decl.) Finally, Waddell argues “[a]ny claim made pertaining to reasoning behind why a suit was filed. . . . [i]s simply frivolous and can be proven.” (Waddell Decl.) In response, Plaintiff argues this Motion to Set Aside is untimely as to the default entered against Waddell on July 11, 2017 and as to the default judgment entered March 21, 2018.

The Motion is DENIED as untimely and procedurally defective. The Court lacks authority to grant this motion, which was filed over two years after entry of default judgment against Waddell and over three years after entry of default. “The six-month time limit for granting statutory relief is jurisdictional and the court may not consider a motion for relief made after that period has elapsed.” (Manson, supra, 176 Cal.App.4th at 42 (emphasis added)) Moreover, Waddell failed to attach a “copy of the answer or other pleading proposed to be filed” if default is vacated. Such an attachment is required, “otherwise the application shall not be granted.” (CCP sec. 473(b).) Therefore, on these procedural grounds, the Motion is denied.

On substantive grounds, Waddell was required to show both “a satisfactory excuse for his default, and . . . diligence in making the motion after discovery of the default.” (Hopkins, supra, 200 Cal.App.4th at 1410.) Waddell does not offer an explanation for the three-year delay in seeking to vacate his default—the Court therefore has no basis to conclude Waddell acted diligently in bringing this motion. This Motion was likely prompted by Waddell’s receipt of notice of entry of foreign judgment on August 17, 2020 as well as his receipt of Plaintiff’s application for entry of sister state judgment in Texas. Even assuming Waddell promptly sought relief upon receiving these notices, the motion is jurisdictionally untimely and cannot be granted.

Waddell claims that he was not served, arguing the proofs of service list “names and addresses . . . that we haven’t been affiliated with for years.” But Waddell does not indicate where he lived at the relevant times to demonstrate service was effected at the wrong address. By contrast, Plaintiff has adduced evidence showing service was actually and accurately completed. The Declaration of Reginald Branch, a registered process server in Texas, states that Mr. Branch personally served the summons and complaint on Waddell at his Katy, Texas residential address on June 8, 2017. (Branch Decl., para. 3-4, Ex. 1.) The Branch Declaration is corroborated by the Declaration of John DeMarr, a licensed private investigator, and the Declaration of Richard Knapp, an in-house investigator for Plaintiff’s firm and a registered process server.

Mr. Knapp conducts “computer investigations lawfully verifying the identity and location of Debtors and Defendants” and “lawful physical investigations” for his employer. (Knapp Decl., para. 3.) On November 28, 2016, Mr. Knapp conducted a Westlaw search to identify Waddell’s current address. The search resulted in a residential address in Katy, Texas. (Knapp Decl., para. 4, Ex. 1.) Mr. Knapp conducted another search through “TLOxp” which produced the same address for Waddell. (Knapp Decl., para. 5, Ex. 2.) Based on these searches, Mr. Knapp “instructed the Firm’s attorney service, Nationwide Legal, LLC to effect personal service on Ethan Waddell.” (Knapp Decl., para. 6.) On November 9, 2018, after entry of default judgment against Waddell, Mr. DeMarr “conducted a location investigation [and] a lawful bank search” as to Waddell and confirmed Waddell resided at the same Katy, Texas address where Waddell was served with the summons and complaint. (DeMarr Decl., para. 4, Ex. 2.) Critically, nothing in Waddell’s Declaration disputes that he resided at this Katy, Texas address at the relevant time. Further, Waddell does not address that he was served with the request for entry of default on July 11, 2017 and the default judgment package on February 23, 2018, merely insisting that service was ineffective. (See Ronald P. Slates Decl., para. 16-18.) Waddell has not provided sufficient facts or evidence to conclude service failed.

Finally, the Court is not persuaded that it lacks jurisdiction over this dispute. Waddell argues the parties’ contract “stat[ed] that any disputes arising from the agreement would be subject to the state of Nevada.” (Waddell Decl.) This is not true—the contract states that “[t]he parties agree that this Agreement shall be interpreted according to the laws of the State of Nevada.” This is a choice of law clause—not a forum selection clause. This clause would require a California court to apply Nevada law in resolving these disputes, but would not preclude a California court from resolving those disputes under Nevada law. Further, Plaintiff’s fraud claim is not based (entirely) on the contract, but on Waddell’s misrepresentations in order to induce Plaintiff to sign the contract. These claims would likely not be subject to a forum selection clause in the contract. Plaintiff was also at all times based in California, including when Waddell urged Plaintiff to buy accounts upon which Plaintiff could sue in California. That the relevant events took place in California further establishes the Court’s jurisdiction.

CONCLUSION

The Motion to Set Aside Default and Default Judgment is DENIED.

Plaintiff to give notice.

If the parties do not submit on the tentative, they are encouraged to appear by LA Court Connect rather than in person.