2010-00070889-CL-CL

Sally K. Callahan vs. John E. Wynton

Nature of Proceeding: Motion to Set Aside Default and Vacate Judgment

Filed By: Moest, Robert C.

Defendant John E. Wynton III’s (“Defendant”) Motion to Set Aside Default and to Vacate Judgment is GRANTED.

Plaintiff in this action was Defendant’s divorce attorney, Sally K. Callahan, P.C. (“Plaintiff”). This dispute involves allegedly unpaid attorneys’ fees resulting from this representation.

Defendant moves to set aside the default judgment entered against him on February 11, 2016, on the ground he was not served with the Summons and Complaint (Code Civ. Proc. § 473(d)) and upon the ground service of the summons did not result in actual notice to him in time to defend the action (Code Civ. Proc. § 473.5).

As noted by Plaintiff, Defendant initially failed to include a copy of his proposed answer or responsive pleading as required by Code of Civil Procedure section 473.5. However, this was cured on reply. Further, Defendant’s original declaration also did not comply with Code of Civil Procedure section 2015.5 as it was executed out of state, but lacked the required language that it was executed “under penalty of perjury under the laws of the State of California … .” (Code Civ. Proc. § 2015.5.) This too has been cured on reply.

Plaintiff filed her complaint on February 23, 2010. The Proof of Service of the Summons and Complaint indicates Defendant was served by substituted service on March 30, 2010, at 11111 Santa Monica Blvd., Suite 1400, Los Angeles, California 90025. The documents were left with “Iryna Tryleaych, person in charge,” and subsequently mailed to Defendant at the same address. (ROA 6.)

Defendant declares he had worked at the 11111 Santa Monica address at one time, but had not worked at the address since October of 2008. (Declaration of John E. Wynton III (“Wynton Decl.”) at ¶ 10.) Defendant declares he never received a copy of the Summons and Complaint. (Ibid.)

Plaintiff contends this address was obtained from Defendant’s LinkedIn page, which indicates he was VP of Pacific Star Capital, located at 11111 Santa Monica Blvd., from 2005 to 2010. However, Defendant has presented credible evidence that this information found on the internet is not accurate. (Wynton Decl. at ¶¶ 10, 15.)

Subsequently, the Proof of Service for Request for Entry of Default indicates Defendant was served on June 10, 2010, by First-Class Mail at 9201 Charleville Blvd., #101, Beverly Hills, California 90201. Defendant declares 90201 is a zip code for a different city and he was no longer associated with this address in 2010. (Wynton Decl.

at ¶ 11.)

Lastly, the Proof of Service of the Notice of Entry of Judgment indicates Defendant was served on March 8, 2016, by First-Class Mail at 8901 Town Center Drive, San Diego, California 92122. Defendant declares the company he works for, ROIC, had offices at 8905 Town Centre Drive, but never at 8901. (Wynton Decl. at ¶¶ 12, 14.) He declares the only delivery he received in connection with this case was the Writ of Execution, which was addressed correctly to ROIC at 8905 Town Centre Drive. (Id.) He declares he was given a copy of the Writ of Execution in November of 2017. (Id.)

Defendant declares had he been aware of this case, he would have taken steps to protect his interests and would never have taken any steps to avoid service. (Wynton Decl. at ¶ 13.)

Section 473 is to be liberally applied where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. ( Berri v. Rogero (1914) 168 Cal. 736.) In such situations, “very slight evidence will be required to justify a court in setting aside the default.” (Id., at 740.) Because the law strongly favors trial and disposition of cases on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default. (Waite v Southern Pacific Co. (1923) 192 Cal. 467; Maynard v. Brandon (2005) 36 Cal. 4th 364, 371-372.)

The evidence demonstrates Defendant lacked notice of the case and acted diligently in seeking relief once he was notified.

The default entered against Defendant on February 11, 2016, is set aside.

Defendant need not file the proposed answer attached to his motion given the Summons and Complaint were never properly served and he has no duty to respond to the complaint at this time.