Case Number: SC128428 Hearing Date: November 21, 2018 Dept: M

CASE NAME: The Semler Companies/Malibu LP v. Colette Pelissier

CASE NUMBER: SC128428

COMPLAINT FILED: 11/29/2017

HEARING DATE: 11/21/2018

TRIAL DATE: N/A

NOTICE: OK

MOTION: Defendant Colette Pelissier’s Motion to Set Aside Default Judgment

HELD: DENIED

TENTATIVE RULING

Background

Plaintiff filed a Complaint against Defendant/Moving Party on November 29, 2017. Defendant was served via substituted service on January 19, 2018. Plaintiff failed to respond to Defendant’s pleading. Default was entered against Defendant on February 28, 2018, and a Default Judgment was entered on May 1, 2018. Defendant now moves to set aside the Default Judgment under Cal. Code of Civ. Proc. §§473 and 473.5.

Defendant argues that the subject Complaint was improperly served on one of her employees, who was not a member of her household or “apparently in charge” of her office. (Cal. Code of Civ. Proc. §415.20.) Additionally, Defendant argues that her mistake in failing to respond to the Complaint was reasonable and excusable, and that she is therefore entitled to relief from the Default Judgment under Cal. Code of Civ. Proc. §473(b).

Merits

On any terms as may be just, the Court may relieve a party from a judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., § 473, subd. (b)). Application for such relief shall be made within six months after the judgment was taken. A mistake is excusable if a “reasonably prudent person under similar circumstances might have made the same error.” (Austin v. Los Angeles Unified School District (2016) 198 Cal.Rptr.3d 239, 248.)

The general underlying purpose of section 473(b) is to promote the determination of actions on their merits. (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830.) The provisions of section 473 of the Code of Civil Procedure are to be liberally construed, and sound policy favors the determination of actions on their merits. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 255.)

When service of summons has not given actual notice to the party in time to defend the action, and a default or default judgment has been entered against him, he may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. (Code Civ. Proc., § 473.5, subd. (a).) The notice of motion shall be served and filed within the earlier of two years after entry of default judgment, or 180 days after service on him of a written notice that the default or default judgment has been entered. (Id.)

Default was entered in this lawsuit on February 28, 2018. Plaintiff filed this motion to set aside Default Judgment on April 30, 2018. Default judgment was entered against Defendant on May 1, 2018. The six-month period within which to bring a Motion to vacate default judgment runs from the date of the default, and not the judgment taken thereafter. (Rutan v. Summit Sports, Inc. (1985) 173 Cal.App.3d 965, 970.) Since this motion was filed within 180 days of the entry of default, it is timely and will be considered on the merits.

Defendant first argues that the Default Judgment in this matter was improper because she never received valid service of the Complaint. (Motion to Set Aside Default Judgment at pgs. 8:3-9:16.) Under Cal. Civ. Code §415.20, substituted service may be made “in the presence of . . . a person apparently in charge of [defendant’s] office, place of business, or usual mailing address[.]” (Cal. Code of Civ. Proc. §415.20.) By Plaintiff’s own admission, substituted service was made on Alex Castro who “works for me as an errand runner who also helps to let in maintenance workers at my home when I am not available.” (Pelissier Declaration at ¶5.) This admission indicates that Castro was “apparently in charge” of the premises when the Complaint was served, regardless of whether or not Castro was actually Defendant’s personal assistant. Defendant’s improper service argument fails.

Defendant argues, in the alternative, that even if service was proper her failure to respond to the Complaint was a result of excusable neglect or reasonable mistake, and therefore the default judgment should be set aside under §473. (Motion to set aside Default Judgment at pgs. 6:7-6:21.) Plaintiff concedes, however, that she received the operative complaint via mail, but did not review it when it was in her possession or pass it along to her attorneys because she “mistakenly assumed [it was] related to the Unlawful Detainer Case[.]” (Pelissier Declaration at ¶10.) In the Court’s opinion, a failure to open and review mail received that the recipient believes is related to an ongoing lawsuit does not constitute a reasonable mistake or excusable neglect. Moreover, this Court finds credible Plaintiff’s argument that Defendant has a history of intentionally allowing lawsuits against her to go to default and only then move to set them aside. This appears to be an intentional tactic of delay rather than repeated incidences of excusable neglect.

Defendant’s Motion is therefore DENIED.