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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA BARBARA
Dated and Entered: 10/30/2020 Time: 10:00 AM
Judicial Officer: Donna D Geck
Deputy Clerk: Kristi Temple Dept: SB Dept 4
Deputy Sheriff: Marco Diaz
Court Reporter: Michelle Sabado Case No: 20CV01530
Tine F Sloan et al vs Michelle Ann Beltran Sell
Parties Present:
John Rydell Plaintiff’s Attorney
Russell Brown Defendant’s Attorney
NATURE OF PROCEEDINGS: Motion: Vacate Default/Quash Service of Summons
The matter proceeded via Zoom.
Counsel presented argument.
The Court adopted the tentative ruling as follows:
RULING: The motion to quash service of summons is denied; defendant was properly personally served
with Summons and Complaint. The motion to vacate and set aside the default which was entered is
granted. The circumstances created by the pandemic with respect to the partial closure of the court and
the reduced services which were available during that time, were sufficiently unusual to excuse
defendant’s failure to timely respond to the complaint. Since she diligently sought to set aside the default
after it was entered, and since her failure to timely respond to the complaint resulted from mistake and
excusable neglect, the motion will be granted. Defendant is directed to separately file her answer
forthwith, but in any event no later than November 10, 2020.
Background: Plaintiffs Tine F. Sloan and Michael Corrigan live at 2928 Arriba Way, and defendant
Michelle Ann Bertran Sell lives at 2924 Arriba Way, with Greggory Patronyk. Plaintiffs and Patronyk have
had a long history of disputes. The property at which defendant lives overlooks the property at which
plaintiffs live. While plaintiffs’ property enjoys great privacy, and their backyard is not visible from any
adjacent properties, except from the balcony at 2924 Arriba Way. Plaintiffs began to notice in 2018 that
Sell and Patronyk would eavesdrop on their conversations from that balcony, and documented Sell
pointing an iPad at them to record their conversations on at least 20 occasions. They photographed Sell
doing so on 11/19/19, and the weekend of February 1-2, 2020. They further documented Sell recording
them on February 17, 2020, and March 7, 2020, when they finally called the police to make a complaint
about Sell’s actions. The police visited the 2924 property, but Sell would not answer the door.
On March 24, 2020, plaintiff’s filed the current complaint, which alleges causes of action for statutory,
constitutional, and common law invasion of privacy, and for private nuisance. It seeks a permanent
injunction ordering Sell, and any other resident, guest, or invitee of 2924 Arriba Way not to make audio or
SC-2411 (Revised July 1, 2013) MINUTE ORDER
video recordings of plaintiffs’ activities and conversations in their back yard, civil fines pursuant to Civil
Code section 1708.8(d), and exemplary damages, among other relief.
The complaint was served upon Sell on April 3, 2020, at 9:30 a.m., by Holden Corrigan, plaintiff Michael
Corrigan’s son. Defendant’s default was entered on June 3, 2020.
Motion: On July 20, 2020, defendant Sell filed the current motion to vacate and set aside the default,
and motion to quash service of summons and complaint.
She contends that the summons and complaint were not properly served upon her, because she refused
the attempt at personal service made on March 20, 2020. The process server did not personally hand
her the Summons and Complaint. He called out “Mich,” her nickname. She turned toward him without
acknowledging that she was the defendant. He indicated he had legal papers for her, and she responded
by turning and walking away. The process server threw the pleadings on the ground at her feet, and said
she was served. She contends the process server did not actually know that the person he was dealing
with was defendant, since she never acknowledged her identity to him. Believing that substituted service
would not be effective until pleadings were mailed to her, she contends that she was not properly served,
because they were not mailed to her until after her default was taken. Because she did not believe
service was complete, she refused to pick up the papers off the ground, and did not read them.
On April 10, 2020, she went to the Santa Barbara Courthouse to see if she could find out why the
process server was attempting to serve her with legal papers, and to find help. A security guard informed
her that because of the Covid19 pandemic, the court was closed until further notice. She contends she is
not very computer literate, and did not know that even though the court was closed, she had options for
which to complete the necessary court filings. She believed the court was effectively closed for business,
and that she could not respond even if the law required her to do so. She declares she has no funds to
hire an attorney to help her through the legal process. She therefore seeks relief form the court to set
aside her default based on mistake, excusable neglect, and on her reasonable diligence once she
recognized the mistake.
Plaintiffs have opposed the motion, contending that the summons was properly personally served by the
process server. Citing Trujillo v. Trujillo (1945) 71 Cal.App.2d 257, 260 and other authorities, they assert
that when a defendant refuses to accept service, personal service can still be effective if the defendant is
aware they are being served and the papers are left in their proximity. Sell’s motion admits that she
attempted to evade service, and her statement that she did not know it was a summons is contradicted
by her own words during the interaction. The process server, son of plaintiff Michael Corrigan, declared
that his father asked him to deliver the summons and complaint to defendant, telling him where she lived,
when she normally left her house to walk her dog, and what she looked like. Based on this information,
he located her around 9:30 a.m. on April 3, 2020. He caught up with her in the public street, asked if she
was Michelle, and she said she was. He responded that he was serving her with the court summons.
She then became agitated and started denying she was Michelle, yelling profanity, and telling him he
was not allowed on the street. She yelled to Mr. Patronyk and stated that he had a summons. She would
not take them from him, so he told her he would leave it on her driveway. He did so, and she watched
him do so. As he walked towards his father’s house, he saw her pick up the summons and complaint,
and start tearing it apart, throwing pieces everywhere. He recorded the interaction on his cell phone, and
plaintiffs have lodged the video with the court and provided a transcript. On the recording Sell can be
heard acknowledging that “this guy” has “a summons” and is “just gonna leave it.”
Plaintiffs assert that Sell was clearly aware of the nature of the documents being served. Plaintiff’s
counsel further sent to Sell a “preservation obligation letter” for her recordings of the plaintiffs, along with
a copy of the complaint, on April 7, 2020. The letter was returned to counsel’s office with Sell’s address
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marked out with a black marker, and “RTS” written across it. They conclude that, under the authorities
cited, Sell was personally served with summons and complaint on April 2, 2020.
With respect to the portion of the motion that seeks to vacate the default, plaintiffs contend that she has
not provided a declaration which shows mistake, inadvertence, surprise, or excusable neglect. They
assert that Sell’s belief that service upon her was not complete was a mistake of law, which is not
normally sufficient to set aside a default. They further contend that her invocation of “excusable neglect”
and subsequent “reasonable diligence” is likewise improper under these facts. She must show that
default could not have been avoided through the exercise of ordinary care, but believing you have not
been properly served is not excusable neglect, particularly when the defendant does not investigate the
propriety of service after-the-fact. Her excuse of not being able to afford an attorney is also not excusable
neglect, nor is a mistake in judgment in proceeding without an attorney. Plaintiffs assert that relief from
the default should be denied.
Defendant Sell did not file any reply papers.
ANALYSIS: The motion is denied, to the extent it seeks to quash service of summons and complaint, but
is granted, to the extent it also seeks relief from entry of default.
1. Motion to quash.
Pursuant to Code of Civil Procedure section 415.10, a summons may be served by personal delivery of a
copy of the summons and of the complaint to the person to be served. Pursuant to the authorities cited in
plaintiffs’ opposition papers, when a defendant refuses to accept service, personal service is still effective
if the defendant is aware that they are being served, and the papers are left in their proximity. (See
Trujillo v. Trujillo(1945) 71 Cal.App.2d 257, 260; and In re Ball (1934) 2 Cal.App.2d 578.)
The Court finds that the summons and complaint were personally served upon defendant Sell.
Regardless of whose declaration is believed, defendant responded either to “Mich” or “Michelle,” when
inquiry was made by the process server. While Sell contends that she had no idea that the documents
were summons and complaint, her declaration testimony to that effect is clearly refuted by the recording
of her comments. She refused to take them, and the process server left them on the driveway at her feet.
At that point, personal service of summons and complaint upon Sell was legally effective. Because
personal service was accomplished, and not “substituted service,” as Sell apparently thought, service
was effective without any follow-up mailing of the summons and complaint. Consequently, the motion is
denied, to the extent it seeks to quash service of summons and complaint.
2. Motion for relief from default.
Pursuant to Code of Civil Procedure section 473(b), the court may relieve a party from a judgment,
dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence,
surprise, or excusable neglect. The reference to judgment, order, or other proceeding includes the entry
of default. (Zellerino v. Brown (1991) 235 Cal.App.3d 1097, 1104.) Unless accompanied by an attorney
affidavit of fault, relief is discretionary, and the party seeking such relief must show specific facts
demonstrating that the condition of mistake, inadvertence, surprise, or excusable neglect was met.
(Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410.) Mistake can refer to a mistake of fact or
law, but in either case, it must be material. Excusable neglect requires that the moving party show a
reasonable excuse for the default.
In this case, service was effected on April 2. Because the courts were largely closed, and were
conducting only essential services from mid-March to May 23, 2020, because of the coronavirus
SC-2411 (Revised July 1, 2013) MINUTE ORDER
pandemic, the court, with authorization from the Chief Justice of the California Supreme Court, issued
orders that all such days would be considered judicial holidays, i.e., any act which would otherwise have
been required by law to have occurred during that period, could legally be performed on the first day
which was not a judicial holiday. Consequently, even though the summons and complaint were
personally served upon defendant on April 2, 2020, and her response thereto would otherwise have
been legally required by May 2, 2020, she was not required to respond to the complaint until those
orders expired.
Apparently feeling either remorse or apprehension, arising from having torn up the legal documents
served upon her on April 2, and from having refused the mail service of the preservation letter on April 7
(and including another copy of the complaint against her), by marking it RTS (return to sender) and
placing it back in the mail, Sell came to the courthouse on April 10 to attempt determine the nature of the
lawsuit filed against her. She declared that she was informed by the security guard that the court was
closed until further notice, because of the pandemic. She believed (correctly, at the time), that the court
was closed for business, and did not realize that there were other options for her to obtain the
information and complete the court filings.
Court records show that the default was entered on June 3, 2020, after the court had resumed the
provision of services in civil cases. Sell attempted to file a General Denial only days later, which was
rejected by the court on June 9, 2020, because of the existing default. Yet another General Denial
submitted by Sell was again rejected by the court on June 22, 2020, again based upon the June 3, entry
of default. Sell made a third attempt to file a General Denial, along with correspondence directed the
judge, which were rejected by the court on July 2, 2020—the General Denial was rejected because of the
entry of default, and the correspondence was rejected because it constituted an ex parte communication
with the judge, which Sell was informed was not permitted. Sell sought a waiver of court fees on July 10,
2020, and on July 20, 2020, filed the current motion.
While her attempts to evade service were less than commendable, Sell’s conduct after the reopening of
the courts was diligent, if uninformed. It would not have been easy for a self-represented litigant to have
determined precisely when the court reopened for business, or precisely when a response to a pleading
filed during the shutdown would have been legally due to be filed. Sell made repeated attempts to
respond to the complaint and defend the action, and when she realized that the entry of her default
precluded her from doing so, she promptly filed the current motion.
The Court finds that the entry of default against defendant Sell resulted from her reasonable mistake and
excusable neglect, and that she acted with reasonable diligence in seeking to have it set aside.
Consequently, the Court will grant the motion for relief from default, and will direct defendant Sell to
separately file her Answer forthwith, but in no event later than November 10, 2020.
DARREL E. PARKER, EXECUTIVE OFFICER Minutes Prepared by:
Kristi Temple , Deputy
SC-2411 (Revised July 1, 2013) MINUTE ORDER
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SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA BARBARA Dated and Entered: 10/30/2020 Time: 10:00 AM Judicial Officer: Donna D Geck Deputy Clerk: Kristi Temple Dept: SB Dept 4 Deputy Sheriff: Marco Diaz Court Reporter: Michelle Sabado Case No: 20CV01530 Tine F Sloan et al vs Michelle Ann Beltran Sell Parties Present: John Rydell Plaintiff’s Attorney Russell Brown Defendant’s Attorney NATURE OF PROCEEDINGS: Motion: Vacate Default/Quash Service of Summons The matter proceeded via Zoom. Counsel presented argument. The Court adopted the tentative ruling as follows: RULING: The motion to quash service of summons is denied; defendant was properly personally served with Summons and Complaint. The motion to vacate and set aside the default which was entered is granted. The circumstances created by the pandemic with respect to the partial closure of the court and the reduced services which were available during that time, were sufficiently unusual to excuse defendant’s failure to timely respond to the complaint. Since she diligently sought to set aside the default after it was entered, and since her failure to timely respond to the complaint resulted from mistake and excusable neglect, the motion will be granted. Defendant is directed to separately file her answer forthwith, but in any event no later than November 10, 2020. Background: Plaintiffs Tine F. Sloan and Michael Corrigan live at 2928 Arriba Way, and defendant Michelle Ann Bertran Sell lives at 2924 Arriba Way, with Greggory Patronyk. Plaintiffs and Patronyk have had a long history of disputes. The property at which defendant lives overlooks the property at which plaintiffs live. While plaintiffs’ property enjoys great privacy, and their backyard is not visible from any adjacent properties, except from the balcony at 2924 Arriba Way. Plaintiffs began to notice in 2018 that Sell and Patronyk would eavesdrop on their conversations from that balcony, and documented Sell pointing an iPad at them to record their conversations on at least 20 occasions. They photographed Sell doing so on 11/19/19, and the weekend of February 1-2, 2020. They further documented Sell recording them on February 17, 2020, and March 7, 2020, when they finally called the police to make a complaint about Sell’s actions. The police visited the 2924 property, but Sell would not answer the door. On March 24, 2020, plaintiff’s filed the current complaint, which alleges causes of action for statutory, constitutional, and common law invasion of privacy, and for private nuisance. It seeks a permanent injunction ordering Sell, and any other resident, guest, or invitee of 2924 Arriba Way not to make audio or SC-2411 (Revised July 1, 2013) MINUTE ORDER video recordings of plaintiffs’ activities and conversations in their back yard, civil fines pursuant to Civil Code section 1708.8(d), and exemplary damages, among other relief. The complaint was served upon Sell on April 3, 2020, at 9:30 a.m., by Holden Corrigan, plaintiff Michael Corrigan’s son. Defendant’s default was entered on June 3, 2020. Motion: On July 20, 2020, defendant Sell filed the current motion to vacate and set aside the default, and motion to quash service of summons and complaint. She contends that the summons and complaint were not properly served upon her, because she refused the attempt at personal service made on March 20, 2020. The process server did not personally hand her the Summons and Complaint. He called out “Mich,” her nickname. She turned toward him without acknowledging that she was the defendant. He indicated he had legal papers for her, and she responded by turning and walking away. The process server threw the pleadings on the ground at her feet, and said she was served. She contends the process server did not actually know that the person he was dealing with was defendant, since she never acknowledged her identity to him. Believing that substituted service would not be effective until pleadings were mailed to her, she contends that she was not properly served, because they were not mailed to her until after her default was taken. Because she did not believe service was complete, she refused to pick up the papers off the ground, and did not read them. On April 10, 2020, she went to the Santa Barbara Courthouse to see if she could find out why the process server was attempting to serve her with legal papers, and to find help. A security guard informed her that because of the Covid19 pandemic, the court was closed until further notice. She contends she is not very computer literate, and did not know that even though the court was closed, she had options for which to complete the necessary court filings. She believed the court was effectively closed for business, and that she could not respond even if the law required her to do so. She declares she has no funds to hire an attorney to help her through the legal process. She therefore seeks relief form the court to set aside her default based on mistake, excusable neglect, and on her reasonable diligence once she recognized the mistake. Plaintiffs have opposed the motion, contending that the summons was properly personally served by the process server. Citing Trujillo v. Trujillo (1945) 71 Cal.App.2d 257, 260 and other authorities, they assert that when a defendant refuses to accept service, personal service can still be effective if the defendant is aware they are being served and the papers are left in their proximity. Sell’s motion admits that she attempted to evade service, and her statement that she did not know it was a summons is contradicted by her own words during the interaction. The process server, son of plaintiff Michael Corrigan, declared that his father asked him to deliver the summons and complaint to defendant, telling him where she lived, when she normally left her house to walk her dog, and what she looked like. Based on this information, he located her around 9:30 a.m. on April 3, 2020. He caught up with her in the public street, asked if she was Michelle, and she said she was. He responded that he was serving her with the court summons. She then became agitated and started denying she was Michelle, yelling profanity, and telling him he was not allowed on the street. She yelled to Mr. Patronyk and stated that he had a summons. She would not take them from him, so he told her he would leave it on her driveway. He did so, and she watched him do so. As he walked towards his father’s house, he saw her pick up the summons and complaint, and start tearing it apart, throwing pieces everywhere. He recorded the interaction on his cell phone, and plaintiffs have lodged the video with the court and provided a transcript. On the recording Sell can be heard acknowledging that “this guy” has “a summons” and is “just gonna leave it.” Plaintiffs assert that Sell was clearly aware of the nature of the documents being served. Plaintiff’s counsel further sent to Sell a “preservation obligation letter” for her recordings of the plaintiffs, along with a copy of the complaint, on April 7, 2020. The letter was returned to counsel’s office with Sell’s address SC-2411 (Revised July 1, 2013) MINUTE ORDER marked out with a black marker, and “RTS” written across it. They conclude that, under the authorities cited, Sell was personally served with summons and complaint on April 2, 2020. With respect to the portion of the motion that seeks to vacate the default, plaintiffs contend that she has not provided a declaration which shows mistake, inadvertence, surprise, or excusable neglect. They assert that Sell’s belief that service upon her was not complete was a mistake of law, which is not normally sufficient to set aside a default. They further contend that her invocation of “excusable neglect” and subsequent “reasonable diligence” is likewise improper under these facts. She must show that default could not have been avoided through the exercise of ordinary care, but believing you have not been properly served is not excusable neglect, particularly when the defendant does not investigate the propriety of service after-the-fact. Her excuse of not being able to afford an attorney is also not excusable neglect, nor is a mistake in judgment in proceeding without an attorney. Plaintiffs assert that relief from the default should be denied. Defendant Sell did not file any reply papers. ANALYSIS: The motion is denied, to the extent it seeks to quash service of summons and complaint, but is granted, to the extent it also seeks relief from entry of default. 1. Motion to quash. Pursuant to Code of Civil Procedure section 415.10, a summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served. Pursuant to the authorities cited in plaintiffs’ opposition papers, when a defendant refuses to accept service, personal service is still effective if the defendant is aware that they are being served, and the papers are left in their proximity. (See Trujillo v. Trujillo(1945) 71 Cal.App.2d 257, 260; and In re Ball (1934) 2 Cal.App.2d 578.) The Court finds that the summons and complaint were personally served upon defendant Sell. Regardless of whose declaration is believed, defendant responded either to “Mich” or “Michelle,” when inquiry was made by the process server. While Sell contends that she had no idea that the documents were summons and complaint, her declaration testimony to that effect is clearly refuted by the recording of her comments. She refused to take them, and the process server left them on the driveway at her feet. At that point, personal service of summons and complaint upon Sell was legally effective. Because personal service was accomplished, and not “substituted service,” as Sell apparently thought, service was effective without any follow-up mailing of the summons and complaint. Consequently, the motion is denied, to the extent it seeks to quash service of summons and complaint. 2. Motion for relief from default. Pursuant to Code of Civil Procedure section 473(b), the court may relieve a party from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. The reference to judgment, order, or other proceeding includes the entry of default. (Zellerino v. Brown (1991) 235 Cal.App.3d 1097, 1104.) Unless accompanied by an attorney affidavit of fault, relief is discretionary, and the party seeking such relief must show specific facts demonstrating that the condition of mistake, inadvertence, surprise, or excusable neglect was met. (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410.) Mistake can refer to a mistake of fact or law, but in either case, it must be material. Excusable neglect requires that the moving party show a reasonable excuse for the default. In this case, service was effected on April 2. Because the courts were largely closed, and were conducting only essential services from mid-March to May 23, 2020, because of the coronavirus SC-2411 (Revised July 1, 2013) MINUTE ORDER pandemic, the court, with authorization from the Chief Justice of the California Supreme Court, issued orders that all such days would be considered judicial holidays, i.e., any act which would otherwise have been required by law to have occurred during that period, could legally be performed on the first day which was not a judicial holiday. Consequently, even though the summons and complaint were personally served upon defendant on April 2, 2020, and her response thereto would otherwise have been legally required by May 2, 2020, she was not required to respond to the complaint until those orders expired. Apparently feeling either remorse or apprehension, arising from having torn up the legal documents served upon her on April 2, and from having refused the mail service of the preservation letter on April 7 (and including another copy of the complaint against her), by marking it RTS (return to sender) and placing it back in the mail, Sell came to the courthouse on April 10 to attempt determine the nature of the lawsuit filed against her. She declared that she was informed by the security guard that the court was closed until further notice, because of the pandemic. She believed (correctly, at the time), that the court was closed for business, and did not realize that there were other options for her to obtain the information and complete the court filings. Court records show that the default was entered on June 3, 2020, after the court had resumed the provision of services in civil cases. Sell attempted to file a General Denial only days later, which was rejected by the court on June 9, 2020, because of the existing default. Yet another General Denial submitted by Sell was again rejected by the court on June 22, 2020, again based upon the June 3, entry of default. Sell made a third attempt to file a General Denial, along with correspondence directed the judge, which were rejected by the court on July 2, 2020—the General Denial was rejected because of the entry of default, and the correspondence was rejected because it constituted an ex parte communication with the judge, which Sell was informed was not permitted. Sell sought a waiver of court fees on July 10, 2020, and on July 20, 2020, filed the current motion. While her attempts to evade service were less than commendable, Sell’s conduct after the reopening of the courts was diligent, if uninformed. It would not have been easy for a self-represented litigant to have determined precisely when the court reopened for business, or precisely when a response to a pleading filed during the shutdown would have been legally due to be filed. Sell made repeated attempts to respond to the complaint and defend the action, and when she realized that the entry of her default precluded her from doing so, she promptly filed the current motion. The Court finds that the entry of default against defendant Sell resulted from her reasonable mistake and excusable neglect, and that she acted with reasonable diligence in seeking to have it set aside. Consequently, the Court will grant the motion for relief from default, and will direct defendant Sell to separately file her Answer forthwith, but in no event later than November 10, 2020. DARREL E. PARKER, EXECUTIVE OFFICER Minutes Prepared by: Kristi Temple , Deputy SC-2411 (Revised July 1, 2013) MINUTE ORDER