Case Number: BC629312 Hearing Date: March 08, 2018 Dept: 92

NEAL KIRSHNER,

Plaintiff,

vs.

RICHARD M. DANFORD, et al.,

Defendant(s).

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Case No.: BC629312

[TENTATIVE] ORDER GRANTING MOTION TO SET ASIDE DEFAULT

Dept. 92

1:30 p.m.

March 8, 2018

Motion of Defendant Richard M. Danford to Set Aside Default is GRANTED.

Plaintiff Neal Kirshner filed this action against Defendant Richard Danford on August 02, 2016, for assault and battery and related claims arising out of an alleged altercation between Plaintiff and Defendant in a parking lot on September 23, 2014.

Plaintiff filed a proof of service on March 23, 2017, stating that Plaintiff was served by substitute service on February 20, 2017. The proof of service indicates the complaint and other documents were served on Plaintiff’s “gatekeeper,” after some thirty-two attempts at personal service, and were subsequently mailed to Plaintiff on March 11, 2017.

Default was entered on May 11, 2017.

On October 18, 2017, Defendant filed a motion to vacate the default. The motion included a declaration, but no memorandum of points and authorities, and asserted service must have been improper because there is no gatekeeper at his apartment. Plaintiff filed an opposition on November 13, 2017,

On December 21, 2017, Defendant filed an amended motion to set aside default. The substance of the motion was the same, but included a memorandum of points and authorities. Plaintiff filed an opposition on January 12, 2018.

The matter came on for hearing on January 30, 2018. The Court ordered Defendant to file a declaration, as required by CCP § 473.5(b), affirming his lack of notice of the case was not due to his avoidance of service or inexcusable neglect. The Court also ordered Defendant to file a proposed responsive pleading.

On February 07, 2018, Defendant filed a demurrer and motion to quash with the Court. Although not labelled as ‘proposed’ pleadings (they were simply filed with the Court, as if they were regularly scheduled motions), it is apparent Defendant intended for these to constitute proposed responsive pleadings.

Also on February 07, 2018, Defendant filed another amended motion to vacate default, including an additional declaration. The motion itself explicitly states that “Defendant’s lack of notice was not caused by his own neglect” and that “Defendant did not attempt to avoid service.” (02.07.18 Motion, ¶¶ 11-12.) The attached declaration is somewhat less specific. In his declaration, Defendant declares “At no time was I ever Served, handed, shown, made aware of, or mailed a ‘Summons of Complaint.’ I was never served. (¶) In conclusion, I consider a summons by any branch of the government to be a very serious matter. Due to my own personal history, and military background, I take legal requests and notices very seriously. My opinions in this matter are in a 180 degree opposite direction to that of the plaintiff’s, and I apologize for taking up the courts time.” (Danford Decl., ¶¶ 15-16.)

Based on the foregoing, the Court concludes Defendant has carried his burden pursuant to CCP § 473.5. First, he has sufficiently demonstrated he did not have actual notice of the complaint. When he first became aware of the suit in May, after receiving a letter from Plaintiff, he sought both to communicate with Plaintiff and contact the Court to obtain information necessary to respond to the suit.

The Court acknowledges that, despite having given him an opportunity to file an additional declaration, Defendant’s declaration remains somewhat vague as to any avoidance of service. However, Defendant does declare he was never “made aware of” the complaint. It is not clear how a person unaware of a complaint could be deemed to have avoided service of the complaint, and the Court therefore concludes Defendant has satisfied the requirements of CCP § 473.5(b). (See also Elston v. City of Turlock (1985) 38 Cal.3d 227, 233-34 [“Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. . . . Moreover, because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.”].)

Accordingly, Defendant’s motion to set aside default is GRANTED.

As noted, Defendant has filed a demurrer and motion to quash with the Court. These are stricken as unauthorized. Because Defendant was in default, these motions have not yet been properly filed. Defendant is ordered to reserve a hearing date through the Court’s online reservation system, and to file and serve his demurrer and motion to quash within twenty days. The Court reminds Defendant that pursuant to CCP § 430.41, before filing any demurrer, Defendant must meet and confer, by telephone or in person, with the Plaintiff, to determine whether the objections to be raised in the demurrer may be resolved informally.

Moving party to provide notice.

Dated this 8th day of March, 2018

Hon. Marc Gross

Judge of the Superior Court