Motion to set aside default and default judgment
Based on the foregoing, Defendant fails to show good cause for a second IME with Dr. Weinstein.
Defendant’s motion to compel an orthopedic IME with Dr. Weinstein is DENIED.
Plaintiff to give notice. 10 6 MERCHANT CAPITAL SOURCE, LLC., A CALIFORINA LIMITED LIABILITY COMPANY vs. RAM CONSTRUCTION S, AND ENGINEERING, LLC., A CALIFORNIA LIMITED LIABILITY COMPANY, 21-01195079
Defendant Jose Molina moves the court for an order setting aside default, and a default judgment entered 8/16/2021.
The Court record herein establishes that on 4/12/2021 Plaintiff initiated this lawsuit by filing a Complaint against Defendants Ram Construction, and Engineering, LLC; Jose Molina; and DOES 1-100. (ROA 2.)
Next, on 6/7/2021 Proofs of Service were filed herein indicating that Defendant Jose Molina was personally served with the Summons and Complaint at 100 East Macarthur Blvd., #506 Santa Ana, Ca 92707 on 5/13/2021. (ROA 9.) Additionally, the entity Defendant, Ram Construction and Engineering, LLC was served on the same date, by serving Jose Molina as the Registered Agent (ROA 11.)
Thereafter, on 7/15/2021 default was entered as to RAM CONSTRUCTION, AND ENGINEERING, LLC., a California Limited Liability ENGINEERING, LLC., a California Limited Liability Company dba RAM CONSTRUCTION AND ENGINEERING; JOSE MOLINA, an individual. (ROA 13.) Defendant Jose Molina is listed on the attachment to the default document.
Ultimately, on 8/16/2021 default judgment as to defaulted defendants was entered. (ROA 23.)
Finally, on 12/4/2025 Defendant Jose Molina filed this Motion to Vacate Default and Default Judgment pursuant to CCP §473.5 and CCP §187. (ROA 62)
Pursuant to CCP §473.5, “(a) 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 the party in the action, the party 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 the party; or (ii) 180 days after service on the party of a written notice that the default or default judgment has been entered.”
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Here, not only does the motion appear untimely, but Defendant has not overcome the presumption the proof of service establishes regarding actual notice.
First, the evidence establishes that Defendant was personally served with the Summons and Complaint on 5/13/2021. Because the return was completed by a registered process server, it creates a presumption, affecting the burden of producing evidence, of the facts stated in the return. [Evid. Code, § 647; Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1427-1428.]
Second, Defendant’s unsupported arguments that he was not served, do not overcome that presumption. Defendant filed a declaration stating, “I have not received any summons and complaint—except in connection with this motion. Referring to the proof of service that Plaintiff filed at the court on 06/07/2021, the summons and complaint were not served on me personally. I did not try to evade service of the summons and complaint.”
Notably, Defendant does not suggest who accepted the summons and complaint at 100 East Macarthur Blvd., #506 Santa Ana, Ca 92707; nor does he explain who the described person in the POS could possibly be. Rather, his self-serving declaration is without detail or explanation.
As such, Defendant has not overcome the presumption that the process server personally served him on 5/13/2021—and thus he appears to have had actual notice of the lawsuit.
Next, CCP §187 provides, “When jurisdiction is, by the Constitution or this Code, or by any other statute, conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code.”
One case explains: “This provision affords trial courts “all the means necessary to carry [their jurisdiction] into effect,” and courts may adopt “any suitable process or mode of proceeding ... which may appear most conformable to the spirit of this code” if the course of proceeding is not specifically pointed out. Section 187 “relates primarily to
procedural matters, typically to control the court’s own process, proceedings and orders, but also may relate to situations in which the rights and powers of the parties have been established by substantive law or court order but workable means by which those rights may be enforced or powers implemented have not been granted by statute. [Citations.]””
[Phillips, Spallas & Angstadt, LLP v. Fotouhi (2011) 197 Cal.App.4th 1132, 1142.]
Here, however, the rights of Defendant to vacate the default and default judgment have been implemented and covered by the Code of Civil Procedure; and thus, citation to CCP §187 is unnecessary.
For these reasons, the motion is DENIED. Plaintiff to give notice.
10 7 Armstrong vs. DH Dental Employment Services, LLC, 25-01508012
Case Management Conference 10 8 Prindiville vs. Golden Rain Foundation of Laguna Woods, 23-01315296
Defendant Golden Rain Foundation of Laguna Woods (“Defendant”) moves for summary judgment or, in the alternative, summary adjudication on the Third Amended Complaint (TAC) of plaintiff Jim Prindiville (“Plaintiff”).
The Court notes that Plaintiff’s counsel of record has been ordered ineligible to practice law. Defense counsel provided notice of counsel’s ineligibility to Plaintiff on April 8, 2026 by phone and on April 9 by mail. On April 23, 2026, the Court continued the hearing on Defendant’s Motion for Summary Judgment to provide Plaintiff with further opportunity to file any opposition. Defendant served a Notice of Ruling on April 29, 2026 on Plaintiff directly via mail, giving Plaintiff notice of the continued hearing date and Plaintiff’s deadline to file any opposition papers. (ROA 228.) To date, Plaintiff has not opposed the Motion for Summary Judgment.
Former counsel for Plaintiff, in a declaration filed on April 23, 2026, contends that the moving papers must be reserved and/or the hearing continued so that Plaintiff can secure new legal counsel, as the moving papers were served on former counsel when his law license was suspended and were not served on Plaintiff personally with adequate notice.