901 Hancock, LP v. Shoolery, et al.

Defendants Mark Shoolery and Kyle Borg’s Motion to Vacate Default is continued to February 21, 2019 at 8:30 am in Department 94.

Discussion

On July 10, 2018, Plaintiff 901 Hancock, LP (“Plaintiff”) filed the instant action for breach of lease agreement against Defendants Mark Shoolery and Kyle Borg (“Defendants”). Following Defendants’ failure to file a responsive pleading, the court entered their default on September 19, 2018. Defendants filed the instant motion to set aside the entry of default on October 29, 2018. To date, no opposition has been filed.

CCP § 473(b)

Defendants first move to vacate the entry of default pursuant to Code of Civil Procedure section 473, subdivision (b), which requires that an application for relief must be made no more than six months after entry of the order from which relief is sought, and must be accompanied by an affidavit of fault attesting to the moving party’s mistake, inadvertence, surprise or neglect. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) 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.” (Code Civ. Proc., § 473, subd. (b).)

“It is the policy of the law to favor, wherever possible, a hearing on the merits, and appellate courts are much more disposed to affirm an order where the result is to compel a trial upon the merits than they are when the judgment by default is allowed to stand and it appears that a substantial defense could be made. Stated another way, the policy of the law is to have every litigated case tried upon its merits, and it looks with disfavor upon a party, who, regardless of the merits of the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary.” (Weitz v. Yankosky (1966) 63 Cal.2d 849, 854–855.)

This motion was timely filed less than six months after default was entered against Defendants on September 19, 2018. However, it is not accompanied by a copy of Defendants’ proposed Answer. Nor is accompanied by any affidavit of fault attesting to the moving party’s mistake, inadvertence, surprise or neglect. Without supporting evidence, the court is unable to evaluate Defendants’ claims regarding their inability to timely respond to the Complaint due to stressful personal circumstances. (See Motion, ¶¶11-17.)

The motion is continued in light of these deficiencies to allow Defendants to file a proposed Answer and supporting affidavits.

CCP § 473.5

Defendants also move pursuant to Code of Civil Procedure, section 473.5, which states:

(d) When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.

(e). A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.

(f) Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.

The motion is also timely under this statute. Regarding actual notice of the Summons and Complaint, Defendants admit to receipt of the Complaint, which they picked up from the UPS Store on July 26, 2018. (Motion, ¶9.) It is unclear whether Defendants also picked up the Summons at that time, but they do not state that they never received the Summons. Defendants’ only contention is that the Summons was not personally served. (See id. at ¶¶7-9.) Personal service of the Summons, however, is not required so long as the statutory requirements for substitute service are satisfied.

Defendants next argue that the proof of service of summons only identifies Kyle Borg as the party served. There are, however, two proofs of service filed on August 1, 2018. One proof of service reflects service of the Summons and Complaint on Defendant Borg, the other reflects service of the Summons and Complaint on Defendant Shoolery.

Finally, Defendants contend there are defects and misleading statements in the declaration of diligence and proof of service. They point out that the declaration of diligence reflects attempted service on July 19, 2018, six days after the purported substitute service on July 13, 2018. This is correct, but is not a basis for finding that Defendants did not receive actual notice of the Summons. At most it appears to be an error on the declarations of diligence, which still reflect multiple attempts to personally serve Defendants.

Based on the foregoing, Defendants have not presented facts that would provide a basis for relief under Code of Civil Procedure section 473.5.

Conclusion

The hearing on Defendants’ Motion to Vacate Default is continued to February 21, 2019 at 8:30 am in Department 94. Defendants are to file and serve declarations addressing their personal circumstances at the time this action was commenced that resulted in their failure to respond to the Complaint and attaching a copy of their Proposed Answer. The supplemental papers are to be filed and served no later than January 28, 2019. Failure to comply with the court’s order may result in the motion being placed off calendar, or denied. Plaintiff may file and serve opposition papers no later than February 6, 2019. Defendants may file reply papers no later than February 13, 2019.

Clerk to give notice.