2012-00129722-CU-BC

Michael Koza vs. Tommy Le

Nature of Proceeding: Motion to Quash Service of Summons

Filed By: Cohen, Eliezer M.

Defendant Tommy Le’s Motion to Quash Service of Process and to Set Aside Default and Default Judgment is DENIED. C.C.P., secs 473 and 473.5

Here, plaintiff filed its complaint against moving party on Aug. 10, 2012.

The proof of service on Tommy Le reflects service by substituted service at 1000 G Street, Suite 125, Sacramento, in October 2012.

Clerk’s Default was entered against defendant Le on Nov. 28, 2012.

Default Judgment was entered on Nov. 10, 2014.

Defendants’ prior motion to vacate and set aside the entry of Judgment was denied by this Court on March 19, 2015.

Code Civ. Proc. § 473(b) provides “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief 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.”

The Motion should be denied for the following reasons,: (1) the court already denied Moving party Le’s Motion to Vacate in March of 2015, and Le is precluded from bringing this second Motion; (2) the Motion is untimely, relating to the default of Movant Le entered on November 28, 2012, a default judgment entered on November 14, 2014; (3) Movant was properly served with the summons and complaint; (4) Movant had actual notice of the proceeding, including a series of communications, directly relating to the litigation during the period 2012 through 2015, and after; and (5) the Motion is not accompanied by an answer as required nor supported by any defense.

Defendant Le submits declarations that he has never lived or resided at the address listed in the proof of service. (Le Decl., ¶ 8; Chisick Decl. ¶ 5; Carpenter Dec. ¶ 4.) Mr. Le has never worked nor had a business at the address listed in the proof of service. (Le Decl., ¶ 9; Chisick Decl., ¶ 5; Carpenter Decl., ¶ 4.) Mr. Le has never rented or leased the property at the address listed in the proof of service. (Le Decl., ¶ 10; Chisick Decl., ¶5.) Mr. Le has have never received any mail at the address listed in the proof of service. (Le Decl., ¶11; Carpenter Decl., ¶ 5.)

Opposition declarations and exhibits reflect that 1000 G Street was a business address for defendant Le, and that Le’s prior counsel contacted plaintiff’s attorney on behalf of all defendants to negotiate a settlement of the case in December of 2012 and March of 2013 (Garner Dec. ¶ ¶ 5, 6).

Indeed, in the prior motion to vacate, defense counsel Robert Stirling represented that he was negotiating a settlement on behalf of all of the defendants. The Court is not persuaded by Le’s current contention that Mr. Stirling was previously involved as legal counsel solely for co-defendant Ray Sahadeo and that Mr. Stirling has never been Mr. Le’s attorney. (Le Decl., ¶12; Stirling Decl., ¶ 3, 4.) The declaration of Eric Garner, counsel for Koza from 2012 through 2015 avers that attorney Stirling, in December of 2012, “contacted my office, on behalf of Mr. Le and the other 3 judgment debtors, to discuss settlement of the lawsuit.” Garner Decl. p. 2, para. 5.

Moreover, it may be observed that this motion is an untimely motion for reconsideration. CCP 1008. Code of Civil Procedure § 1008 imposes special requirements on renewed applications for orders a court has previously refused. A party filing a renewed application must, among other things, submit an affidavit showing what new or different facts, circumstances, or law are claimed, (id., subd.

(b) to justify the renewed application, and show diligence with a satisfactory explanation for not presenting the new or different information at an earlier date. California Correctional Peace Officers Assn. v. Virga (2010) 191 Cal App. 4th 30, 45-46, and fns. 14,15.

Based on the record before it, the Court is not persuaded that Le was never served with the summons and complaint or that Mr. Le was completely unaware that this case existed until about two months ago. (Le Decl., ¶ 3.)

To the extent that Le moves under C.C.P., sec. 473(d), he has failed to move timely to set aside the judgment. A defendant can make a motion showing a lack of actual notice not caused by avoidance of service or inexcusable neglect, but such motion must be made no later than two years after entry of judgment, and the party must act with diligence upon learning of the judgment. (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180.) Here, no such diligence is shown.

Further, relief under both CCP § 473.5 and CCP § 473(b) requires that, with the Notice of Motion, the moving party serves the proposed answer. CCP § 473.5(b), CCP § 473

(b). Movant Le has not complied with this requirement.

The motion to quash service of process and to set aside default and default judgment against defendant Tommy Le is denied.