Case Number: 18CMCV00082 Hearing Date: February 25, 2020 Dept: A

# 5. Creative Judgment Solutions v. Dimitriea Calhoun, et al.

Case No.: 18CMCV00082

Matter on calendar for: Motion to Set Aside Default Judgment and Default

Tentative ruling:

Background

This is a fraudulent transfer action derived from a previous collection action (TC023821). A default judgment was entered against Thelindria Calhoun and her husband, Leo Calhoun, by Ridgill Johnson Properties, Inc., in 2010. Plaintiff Creative Judgment Solutions was assigned its rights by Ridgill in 2016. The judgment was set aside in 2017, but a new judgment of $175,191.42 plus interest was entered against Thelindria Calhoun in December 2018.

The current action concerns real property at 524 W 91st Str., Los Angeles, CA 90044, that was transferred in 2017 from Thelindria Calhoun to her daughter, Defendant Dimitriea Calhoun, when Thelindria Calhoun’s health began to deteriorate. Default judgment was entered after a hearing on December 6, 2019.

Defendant Dimitriea Calhoun now moves to set aside the default judgment and entry of default. An opposition was filed, but as of January 14, 2020, no reply has been filed with the Court. The hearing was continued to February 25, 2020.

For the reasons set forth below, the Court denies the motion.

Standard

Within six months of a judgment, order, dismissal, or other proceeding taken against a party, a court may relieve the party from that proceeding if it resulted from their mistake, inadvertence, surprise, or excusable neglect. (C.C.P., § 473(b).) Mistake of fact is when a person understands facts to be other than they are. (Hodge Sheet Metal Products v. Palm Springs Riviera Hotel (1961) 189 Cal.App.2d 653.) Surprise denotes a condition or situation in which a party “is unexpectedly placed… without any default or negligence of his own… which ordinary prudence could not have guarded against.” (McGuire v. Drew (1890) 83 Cal. 225, 229.) An error is excusable if a reasonably prudent person under the same or similar circumstances might have made the same error. (Zamora v. Clayborn Contracting Group, Inc. (2002) 29 Cal.4th 249, 258, [Citations omitted].) The law “strongly favors trial and disposition on the merits . . . .” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233–234.)

Code of Civil Procedure § 473.5 may be used when a defendant was properly served but did not receive actual notice of a suit. It is limited to the earlier of (i) 180 days after service of a written notice that default or default judgment has been entered, or (ii) two years after entry of default judgment. (C.C.P., § 473.5(a).) This statute authorizes the setting aside of both default judgment and the underlying default.

Analysis

Defendant argues that the proof of service indicates she lives at 14471 Ashton Lane, Riverside, California 92508, but that her residence is at 22330 Myler Street, Unit 35, Torrance, California, 90502 for the past 30 years. In opposition, Plaintiff provides affidavits attesting to the multiple unsuccessful service attempts made at the Torrance address, as well as the declaration of Phil Smith, an officer of Plaintiff. Smith recounts the discovery of the Riverside address via public records, such as the quitclaim deed in contention, which lists the Riverside address as Defendants’ mailing address and was recorded in 2017.

Defendant’s declarations are unpersuasive, while Plaintiff provides the process server reports for attempted service at the Torrance address which contain numerous instances of individuals at the home, yet failing to come to the door. Further, although the deed states that Defendant lives at the Torrance address, the Riverside address was listed as Defendant’s effective address for the preparation of the deed and for its return. This is not explained by Defendant, who declares that she is only familiar with the property as a location she stayed at in 2011–2012 as an Airbnb and that she has never been served with legal papers at that location. Accordingly, Defendant has failed to meet her burden rebutting the presumption of proper service.

The motion to set aside is denied.

Ruling

The motion to set aside is denied.