Motion to set aside default and default judgment
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
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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.
The Court, on its own motion, will take judicial notice of the California State Bar’s records unless any party demonstrates that judicial notice would be improper. (State Bar of California online attorney profile https://apps.calbar.ca.gov/attorney/Licensee/Detail/1839 12 [as of June 11, 2026].) (See Evid. Code, § 455(b); see also Evid. Code, § 452(h); People v. Vigil (2008) 169 Cal.App.4th 8, 12, fn. 2 [taking judicial notice of State Bar records, including notation of date attorney was not eligible to practice law]; People v. Riggs (2026) 119 Cal.App.5th 213, 219, fn. 6 [same].)
The State Bar records show that Plaintiff’s former counsel was not ordered inactive until February 10, 2026. Thus, when the Motion for Summary Judgment papers were served on former counsel on December 17, 2025, he was still active and acting as Plaintiff’s representative in this matter and Defendant’s service on Plaintiff’s then-active counsel was proper and timely. In addition, Plaintiff has now been afforded a second opportunity to oppose the Motion, request further continuance, or obtain new counsel and has failed to do so. Thus, the Court finds no further continuance to be warranted.
Here, the TAC asserts a single cause of action for breach of fiduciary duties. The TAC alleges that on January 23, 2021, Plaintiff took bus transportation provided by Defendant and on the return trip, the bus driver opened the exit doors but did not get up to assist passengers who were obviously disabled off the bus. When Plaintiff exited, he fell because the ramp was not fully extended. Plaintiff alleges that the fall caused him pain and suffering and irreparable damage to his prosthetic hip. He further alleges it caused him to become mentally incompetent until at least March 27, 2001 when he was first able to care for himself without skilled nursing care, as he was prescribed and given full time care from the date of his fall and he could not mentally or physically care for himself from March 4 through March 26, 2021 due to the medication he was prescribed.
Through deemed admissions, Plaintiff admits that Defendant never breached a fiduciary duty owed to Plaintiff, that he was not mentally incompetent at any time between the dates of January 23, 2021 and March 26, 2021, that his complaint was filed more than two years after the date of the incident, and that his claims in connection with the incident are time-barred by the statute of limitations set forth in Code of Civil Procedure section 335.1. These admissions are fatal to Plaintiff’s claim.