On November 14, 2011 a
Motion,Ex Parte
was filed
involving a dispute between
Naghash, Ashley M.,
and
Board Of Trustees Of The California State University,
Campbell, Adam Ariel,
Campbell, Ariel,
Chen, Win,
Does 1-100,
Gonzalez, Alexander,
Menard, Adam,
Philips, April,
Richards, Terry Joseph,
Speros, Michael,
The California State University,
The California State University Sacramento,
The State Of California,
for (Other Personal Injury/Propert...)
in the District Court of Sacramento County.
Preview
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SACRAMENTO
GORDON D SCHABER COURTHOUSE
MINUTE ORDER
DATE: 03/11/2014 TIME: 09:00:00 AM DEPT: 54
JUDICIAL OFFICER PRESIDING: Raymond Cadei
CLERK: D. Ahee
REPORTER/ERM:
BAILIFF/COURT ATTENDANT: C. Chambers
CASE NO: 34-2011-00113923-CU-PO-GDS CASE INIT.DATE: 11/14/2011
CASE TITLE: Naghash vs. Board Of Trustees Of The California State University
CASE CATEGORY: Civil - Unlimited
EVENT ID/DOCUMENT ID: ,10874810
EVENT TYPE: Motion to Set Aside - Civil Law and Motion
MOVING PARTY: Terry Joseph Richards
CAUSAL DOCUMENT/DATE FILED: Motion to Set Aside Default & Default Judgment, 01/28/2014
APPEARANCES
Terry Joseph Richards, self represented Defendant, present.
Patricia Ann Campi made a special appearance on behalf of Terry Richards
Nature of Proceeding: Motion to Set Aside Default and Default Judgment
TENTATIVE RULING
Defendant Terry Richard's motion to set aside default and default judgment is ruled upon as follows.
Default was entered on against Defendant on May 31, 2013. On September 23, 2013, Defendant
moved to set aside the default. The Court denied the motion to set aside on the grounds that Defendant
did not include a copy of the proposed order. Defendant moved for reconsideration on December 27,
2013. On January 28, 2014, the Court granted the motion for reconsideration on the grounds that its
prior motion should have been denied without prejudice, allowing Defendant to re-file the motion.
Defendant filed the instant motion the same day.
The Court notes that default judgment has not yet been entered against Defendant.
The proof of service indicates that Defendant was served via substitute service on February 17, 2013 at
2715 Wildfire Dr. Antioch, CA 94531. The papers were served on "John Doe, African American Male 38
Yrs 8'0" 249 lbs. Brown Hair Brown Eyes."
Defendant's declaration states the following: (1) on February 17, 2013, he was not living at 2715 Wildfire
Dr., Antioch CA, which is his mother's address, (2) he had not been living there for the past two years,
(3) he did not find out about the service of the summons and complaint until he discovered that a request
for default had been filed, (4) on August 3, 2013, the house he was living in burned down, he then began
using his mother's address for mailing until he could permanently relocate. (Declaration of Terry
Richards.)
As an initial matter, the Court disagrees with Plaintiff that the motion is untimely. Default was entered on
May 31, 2013 and Defendant timely filed a motion for relief from default on September 23, 2013.
Although the Court initially denied the motion, it thereafter allowed Defendant the opportunity to re-file
the motion. Given the record before it, the Court does not agree the motion is untimely.
DATE: 03/11/2014 MINUTE ORDER Page 1
DEPT: 54 Calendar No.
CASE TITLE: Naghash vs. Board Of Trustees Of The CASE NO: 34-2011-00113923-CU-PO-GDS
California State University
Plaintiff argues that the complaint was properly served. She argues that on December 20, 2013, the
process server attempted to serve Defendant at 2715 Wildflower Dr. The process server was told by
"John Doe" that she had a bad address. The process server checked with a neighbor who advised her
that they did not know the names of the tenants bud that the family lives there. The process server
again attempted to serve Defendant at the same address, however, there was no answer at the door.
Thereafter, Plaintiff conducted a "more thorough re-search of the public records and publicly available
information." Plaintiff's counsel was unable to determine any other address for Defendant. The process
server thereafter sub-served Defendant.
Substitute service on an individual is accomplished by "leaving a copy of the summons and complaint at
the person's dwelling house, usual place of abode, usual place of business, or usual mailing address
other than a United States Postal Service post office box, in the presence of a competent member of the
household or a person apparently in charge of his or her office, place of business, or usual mailing
address ... , at least 18 years of age, who shall be informed of the contents thereof, and by thereafter
mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to
be served at the place where a copy of the summons and complaint were left." (CCP § 415.20 (b).)
Here, the Court is not persuaded by Defendant that he was not properly served. The Court notes that
although Defendant indicates that he did not live at 2715 Wildflower at the time of service, he does not
provide the address at which he was living nor any documentary evidence supporting this claim.
Moreover, it appears that the process server exercised reasonable diligence in attempting to serve
Defendant. Lastly, substitute service is proper where the papers are left with a competent person at the
"usual mailing address." Here, Plaintiff's counsel conducted "a more thorough re-search of the public
records and publicly available information to verify Defendant, Richards' residence address.
(Declaration of Roger E. Naghash, para, 9.)
Given the above record, Defendant has not demonstrated that he was not properly served at his mailing
address or that the default was taken as a result of mistake, inadvertence, surprise or excusable neglect.
Accordingly, the motion to set aside default is DENIED.
The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further
notice is required.
The notice of motion does not provide notice of the Court's tentative ruling system, as required by Local
Rule 1.06(A). Defendant is directed to contact Plaintiff's counsel forthwith and advise counsel of Local
Rule 1.06 and the Court's tentative ruling procedure. If Defendant is unable to contact Plaintiff's counsel
prior to hearing, Defendant shall be available at the hearing, in person or by telephone, in the event
opposing party appears without following the procedures set forth in Local Rule 1.06(A).
The court notes that moving party has indicated the incorrect address in its notice of motion. The correct
address for Department 54 of the Sacramento County Superior Court is 800 9th Street, Sacramento
California 95814. Moving party shall notify responding party(ies) immediately.
COURT RULING
This mattter was ordered continued to April 9, 2014 at 9:00 a.m. in Department 54.
DATE: 03/11/2014 MINUTE ORDER Page 2
DEPT: 54 Calendar No.
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SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO GORDON D SCHABER COURTHOUSE MINUTE ORDER DATE: 03/11/2014 TIME: 09:00:00 AM DEPT: 54 JUDICIAL OFFICER PRESIDING: Raymond Cadei CLERK: D. Ahee REPORTER/ERM: BAILIFF/COURT ATTENDANT: C. Chambers CASE NO: 34-2011-00113923-CU-PO-GDS CASE INIT.DATE: 11/14/2011 CASE TITLE: Naghash vs. Board Of Trustees Of The California State University CASE CATEGORY: Civil - Unlimited EVENT ID/DOCUMENT ID: ,10874810 EVENT TYPE: Motion to Set Aside - Civil Law and Motion MOVING PARTY: Terry Joseph Richards CAUSAL DOCUMENT/DATE FILED: Motion to Set Aside Default & Default Judgment, 01/28/2014 APPEARANCES Terry Joseph Richards, self represented Defendant, present. Patricia Ann Campi made a special appearance on behalf of Terry Richards Nature of Proceeding: Motion to Set Aside Default and Default Judgment TENTATIVE RULING Defendant Terry Richard's motion to set aside default and default judgment is ruled upon as follows. Default was entered on against Defendant on May 31, 2013. On September 23, 2013, Defendant moved to set aside the default. The Court denied the motion to set aside on the grounds that Defendant did not include a copy of the proposed order. Defendant moved for reconsideration on December 27, 2013. On January 28, 2014, the Court granted the motion for reconsideration on the grounds that its prior motion should have been denied without prejudice, allowing Defendant to re-file the motion. Defendant filed the instant motion the same day. The Court notes that default judgment has not yet been entered against Defendant. The proof of service indicates that Defendant was served via substitute service on February 17, 2013 at 2715 Wildfire Dr. Antioch, CA 94531. The papers were served on "John Doe, African American Male 38 Yrs 8'0" 249 lbs. Brown Hair Brown Eyes." Defendant's declaration states the following: (1) on February 17, 2013, he was not living at 2715 Wildfire Dr., Antioch CA, which is his mother's address, (2) he had not been living there for the past two years, (3) he did not find out about the service of the summons and complaint until he discovered that a request for default had been filed, (4) on August 3, 2013, the house he was living in burned down, he then began using his mother's address for mailing until he could permanently relocate. (Declaration of Terry Richards.) As an initial matter, the Court disagrees with Plaintiff that the motion is untimely. Default was entered on May 31, 2013 and Defendant timely filed a motion for relief from default on September 23, 2013. Although the Court initially denied the motion, it thereafter allowed Defendant the opportunity to re-file the motion. Given the record before it, the Court does not agree the motion is untimely. DATE: 03/11/2014 MINUTE ORDER Page 1 DEPT: 54 Calendar No. CASE TITLE: Naghash vs. Board Of Trustees Of The CASE NO: 34-2011-00113923-CU-PO-GDS California State University Plaintiff argues that the complaint was properly served. She argues that on December 20, 2013, the process server attempted to serve Defendant at 2715 Wildflower Dr. The process server was told by "John Doe" that she had a bad address. The process server checked with a neighbor who advised her that they did not know the names of the tenants bud that the family lives there. The process server again attempted to serve Defendant at the same address, however, there was no answer at the door. Thereafter, Plaintiff conducted a "more thorough re-search of the public records and publicly available information." Plaintiff's counsel was unable to determine any other address for Defendant. The process server thereafter sub-served Defendant. Substitute service on an individual is accomplished by "leaving a copy of the summons and complaint at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address ... , at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left." (CCP § 415.20 (b).) Here, the Court is not persuaded by Defendant that he was not properly served. The Court notes that although Defendant indicates that he did not live at 2715 Wildflower at the time of service, he does not provide the address at which he was living nor any documentary evidence supporting this claim. Moreover, it appears that the process server exercised reasonable diligence in attempting to serve Defendant. Lastly, substitute service is proper where the papers are left with a competent person at the "usual mailing address." Here, Plaintiff's counsel conducted "a more thorough re-search of the public records and publicly available information to verify Defendant, Richards' residence address. (Declaration of Roger E. Naghash, para, 9.) Given the above record, Defendant has not demonstrated that he was not properly served at his mailing address or that the default was taken as a result of mistake, inadvertence, surprise or excusable neglect. Accordingly, the motion to set aside default is DENIED. The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required. The notice of motion does not provide notice of the Court's tentative ruling system, as required by Local Rule 1.06(A). Defendant is directed to contact Plaintiff's counsel forthwith and advise counsel of Local Rule 1.06 and the Court's tentative ruling procedure. If Defendant is unable to contact Plaintiff's counsel prior to hearing, Defendant shall be available at the hearing, in person or by telephone, in the event opposing party appears without following the procedures set forth in Local Rule 1.06(A). The court notes that moving party has indicated the incorrect address in its notice of motion. The correct address for Department 54 of the Sacramento County Superior Court is 800 9th Street, Sacramento California 95814. Moving party shall notify responding party(ies) immediately. COURT RULING This mattter was ordered continued to April 9, 2014 at 9:00 a.m. in Department 54. DATE: 03/11/2014 MINUTE ORDER Page 2 DEPT: 54 Calendar No.