Case Number: BC592250 Hearing Date: June 06, 2018 Dept: 3

JENNIFER GREER,

Plaintiff(s),

vs.

JESSICA BELANGER, et al.,

Defendant(s).

Case No.: BC592250

[TENTATIVE] ORDER DENYING MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT

Dept. 3

1:30 p.m.

June 6, 2018

1. Background Facts

Plaintiff, Jennifer Greer filed this action against Defendants, Jessica Belanger, Willard Bergenholtz, and Willard Bergenholtz as Trustee of the Wilfred Willard Bergenholtz Trust for damages arising out of a dog attack. Plaintiff sustained injuries to her right breast as a result of the attack.

Plaintiff filed her complaint on 8/24/15. On 12/01/15, she filed proof of service of the summons, complaint, statement of damages, and related documents on Defendants, William Bergenholtz and William Bergenholtz as Trustee for the Wilfred Willard Bergenholtz Trust (collectively “Bergenholtz”). Both proofs of service show service on Bergenholtz via substitute service on Mario Bergenholtz, Son and Co-Occupant, at 2425 East 6th St., Long Beach, CA 90814. Service took place on 9/17/15 and the documents were mailed the next day. Each POS is accompanied by a declaration of diligence showing three prior attempts at service prior to effectuating substitute service.

On 12/01/15, the Clerk entered Bergenholtz’s default. On 12/07/16, the Court reviewed Plaintiff’s papers in support of her request for default judgment and set the matter for a bench trial. On 3/10/17, the Court heard a bench trial. The Court awarded Plaintiff special damages and general damages (pain and suffering), as well as costs of suit.

On 3/22/17, Plaintiff filed a Notice of Entry of Judgment. The Notice indicates that notice was given to the Bergenholtz Defendants on 3/13/17 via US mail at 2425 East 6th Street, Long Beach, CA 90814.

2. Motion to Vacate Default and Default Judgment

At this time, the Bergenholtz Defendants move to vacate the default and default judgment entered against them. They contend the judgment should be vacated because:

· Substitute service was not proper;

· There was no due diligence;

· Defendants lacked “actual notice” of the proceedings against them;

· Relief should be granted due to extrinsic fraud;

· The default was “secret” and therefore failure to answer constitutes excusable neglect;

· The law favors trial on the merits and very little evidence is necessary to set aside a default judgment.

· Plaintiff improperly sought imposition of punitive damages without notice.

Propriety of Substitute Service

Defendants’ first argument is that substitute service on them was not proper. Defendants therefore move to set aside the judgment against them pursuant to CCP §473(d), which requires the Court to vacate a void judgment.

As an initial note, the parties disagree about whether the motion on this ground is timely or not. Defendants, in their moving papers, first concede that a motion under 473(d) must be made within the same time period as a motion under §473.5. See motion, page 9, lines 1-5. They go on, however, to argue that a motion to set aside a default judgment on the ground that it is void can be made “at any time.” See motion at page 9, line 21.

The Court finds it is not necessary to resolve this issue, as Defendants failed to show that the documents were not properly served on them via substitute service. Defendants rely on technicalities in support of this argument.

The first technicality upon which Defendants rely is the fact that the declaration of diligence contains the zip code 90844 instead of the proper zip code, 90814. The actual proof of service, however, contains the correct zip code, 90814, and it is clear that the declaration of diligence contains a mere typographical error. The Court takes judicial notice of the fact that there is no 2425 E. 6th Street in Long Beach in the zip code 90844. Of note, the POS indicates the papers were served by mail at the correct address.

The second technicality is the fact that the proofs of service indicate all three co-defendants were substitute served at the same address, when Co-Defendant, Belanger resided at 2423 E. 6th Street, not 2425 E. 6th Street. This is a red herring argument. The motion is not brought by Belanger. Whether she was properly served via substitute service on the Bergenholtz Defendants’ son is therefore not at issue. The Moving Bergenholtz Defendants concede the service address on the proofs of service on them was correct, but for the wrong zip code on the declaration of diligence. Additionally, Belanger testified in her deposition, on page 16, that she and Bergenholtz lived about twelve feet from each other on the same piece of property, with Bergenholtz in the front house and her in an apartment in the back.

The third technicality is the contention that a proof of substitute service of a statement of damages dated 8/18/15 has the “incorrect spelling” of the last name of the process server. The correct date the declaration was signed is 9/18/15, not 8/18/15; in any event, the Court has reviewed the signature and finds it is exactly that – a signature. Most of us do not write every single letter of our name correctly and properly when we sign documents. The Court has viewed many signatures that look like nothing more than a slightly curvy line. This argument lacks any merit whatsoever.

The motion is also based on the Declarations of Bergenholtz and Belanger. Bergenholtz declares he first learned of the lawsuit in March of 2018 when he applied for a loan and the lender told him of the judgment. Belanger declares that she never lived with Bergenholtz and that she has no personal knowledge concerning whether or not Bergenholtz was served with the papers in connection with this lawsuit.

The Court finds the Declaration of Bergenholtz entirely lacking in credibility. The Court has reviewed the Declaration of Plaintiff’s attorney, filed in support of the opposition, and finds it more credible than Bergenholtz’s declaration. Plaintiff’s attorney, John M. Anderson, declares he sent a letter to Bergenholtz on 7/07/15 before he filed a lawsuit. He also declares that, on the same day Defendants were served, he received a phone call from Bergenholtz denying responsibility for the incident. Counsel also details all of the papers that have been served on Bergenholtz, from the summons and complaint to the request for entry of default to the notice of entry of judgment.

With respect to Belanger’s declaration, the Court finds it is entirely possible that she does not have specific knowledge of whether or not Bergenholtz was served with the summons and complaint. However, her deposition testimony is attached as Exhibit 7 to the moving papers. In her deposition, she testified, on pages 41 and 42 that Bergenholtz stopped at her place of work several times and told her she had really fucked up; the notes were connected to pieces of paperwork relating to the lawsuit. While Belanger may not have personal knowledge concerning the specifics of the service of the summons and complaint on Bergenholtz, her deposition testimony is compelling concerning Bergenholtz’s knowledge of the proceedings against him. The motion to set the default aside on the ground that substitute service was not proper is denied.

Due Diligence

Defendants’ next argument is that there was no due diligence prior to substitute service. The process server made three attempts to serve Defendants prior to serving them by substitute service. This is typical, and Defendants cite no authority for the position that more is necessary. The motion on this ground is also denied.

Lack of Actual Notice

The motion on the ground that Bergenholtz lacked actual notice of the proceedings against him is denied for the reasons discussed above. The Court does not find Bergenholtz’s declaration credible in this regard. Notably, Bergenholtz asks the rhetorical question of why he would ignore the lawsuit in light of the fact that he had homeowners’ insurance. The Court cannot answer this question, but knows that defendants often ignore civil proceedings against them for a variety of reasons.

Equitable Power/Fraud

The Court finds absolutely no evidence of fraud, and the motion to vacate the default judgment on the ground that it was obtained through fraud is denied.

Excusable Neglect

The motion to set aside the default based on excusable neglect is denied for two reasons. First, the motion was not made within six months, which is mandatory. Second, Defendants failed to show anything about the lawsuit was “secret,” such that their failure to answer is excusable.

Policy Favoring Litigation on the Merits

While Defendants correctly note that there is a policy in favor of litigation on the merits, this does not negate the requirement that a credible basis for setting aside the default and default judgment must be articulated. In this case, there is none.

Punitive Damages

Defendants also argue that Plaintiff improperly sought imposition of punitive damages without a prayer for punitive damages in her complaint. The Court denied the request for punitive damages on the ground that Plaintiff failed to prove up Defendants’ net worth. Defendants fail to show that seeking damages that are not ultimately awarded is a ground to vacate a default judgment.

Conclusion

Defendants failed to articulate a basis, without sufficient credible supporting evidence, to set aside the default and/or default judgment entered against them. The motion is therefore denied.

Defendants are ordered to give notice.