Defendant Pacific Dealer Center, Inc.’s motion for relief from default
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# Case Name Tentative
1. 2024-1401357 The Court, on its own motion, advances the motion to be relieved as Knutson vs. counsel of Plaintiff, Sharon Knutson. Coldwell Banker The motions of Alexander Conti, counsel of record for plaintiffs Residential Sharon Knutson and Todd Knutson, for orders relieving him as Brokerage counsel for each of Plaintiffs are granted. [ROA ## 52, 57.] Company The court will interlineate the new trial date into the proposed orders and delete references to the prior date and will sign the amended orders.
Upon the signing of the orders, counsel shall serve the signed order on each of Plaintiffs and all parties that have appeared. Counsel will be relieved as counsel of record for each of Plaintiffs effective upon the filing of the proofs of service of the signed orders upon each of Plaintiffs and all other parties.
2. 2025-1488642 Defendant Pacific Dealer Center, Inc.’s motion for relief from the Swannie vs. default entered against it in this action is granted. Code Civ. Proc. Swannie §473(b), (d).
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Facts This is a derivative action brought against Mark Swannie, an officer and director of Pacific Dealer Center for misuse of corporate asserts. [Complaint (ROA #2).] Pacific Dealer Center is a nominal defendant. [Id.] Trial is set for 2/22/27.
Mark Sannie was personally served and has answered. [ROA ## 10, 12.]
According to the proof of service filed, Pacific Dealer Center was served on 11/24/25 by substitute service on its CEO, Peter Dames. [ROA #33.] Plaintiff requested and obtained Pacific Dealer Center’s default on 1/13/26. [ROA #41.]
According to Mark Swannie, director and 60% owner of Pacific Dealer Center, Peter Dames is not and never has been associated with Pacific Dealer Center. Confused by an envelope addressed to Peter Dames, Mark Swannie did not understand Pacific Dealer Center had been sued or that any action was required. He obtained counsel for Pacific Dealer Center as soon as default was entered. [Swannie Decl. (ROA #53), ¶¶ 1-9.]
Discussion
The law favors a trial on the merits, and doubts in applying Code Civ. Proc. § 473 are resolved in favor of the party seeking relief from default. Iott v. Franklin (1988) 206 Cal.App.3d 521, 526. If a party moves promptly for default relief, or if the granting of the relief from default will not prejudice the opposing party (other than losing the advantage of the default), only slight evidence will justify an order granting such relief. Ibid.
“Because the law favors disposing of cases on their merits, ‘any doubts in applying section 473 must be resolved in favor of the party seeking relief from default [citations]. Therefore, a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits.’ [Citations.]” Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980; Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 696 (citations omitted).
The most fundamental of those principles is that affirmed in Au–Yang v. Barton (1999) 21 Cal.4th 958, 963, 90 Cal.Rptr.2d 227, 987 P.2d 697: “ ‘[T]he 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.’ “ (Ibid., Citing among other cases, Weitz v.
Yankosky (1966) 63 Cal.2d 849, 855, 48 Cal.Rptr. 620, 409 P.2d 700 (Weitz).) Id.
Code Civ. Proc. § 473(b) Defendant moves for relief under Code of Civil Procedure section 473(b).
Code of Civil Procedure section 473(b) permits a court to grant relief from a judgment, dismissal, order or other proceeding taken against a party on the grounds of “mistake, inadvertence, surprise or excusable neglect
A motion seeking relief under section 473(b) must be brought within six months of entry of the judgment. Code Civ. Proc. § 473(b). A proposed answer or other responsive pleading is to be filed with the motion for relief. Id.
Pacific Dealer Center’s motion is timely and a proposed answer is provided. [See Motion, Ex. 2.]
Mark Swannie’s declaration supports relief on the basis of mistake. He was mistaken as to whether Pacific Dealer Center needed to respond based on documents directed to Peter Dames, a person not affiliated with Pacific Dealer Center. To the extent the failure to forward the complaint to counsel was neglect, under these circumstances it was excusable neglect.
Code Civ. Proc. §473(d) Defendant also moves for relief under Code of Civil Procedure section 473(d).
Under section 473(d), “[t]he court may, ... on motion of either party after notice to the other party, set aside any void judgment or order.” Generally, defendants have six months from entry of judgment to move to vacate. Code Civ. Proc. § 473(b).
When a motion to vacate the judgment is based on lack of valid service, it is the plaintiff’s burden to establish proper service. Dill v. Berquist Construction Co., 24 Cal.App.4th 1426, 1441. As long as the proof of service reveals the jurisdictional defect, the defendant need not make any evidentiary showing. Ibid. The plaintiff may then defend the judgment with “affidavits or other evidence that goes beyond the judgment roll as set forth in section 670, subdivision (a).” Ramos v. Homeward Residential, Inc. (2014) 223 Cal.App.4th 1434, 1440. The court of appeal reviews the trial court’s findings as to matters beyond the judgment roll for substantial evidence (Shamblin v. Brattain (1988) 44 Cal.3d 474,
479), deferring to the trial court’s resolution of disputed facts and assessment of witness credibility. Pope v. Babick (2014) 229 Cal.App.4th 1238, 1245-1246. If the trial court makes no express findings on a particular issue, the court of appeal will imply findings in favor of the trial court’s ruling if they are supported by substantial evidence. Fair v. Bakhtiari (2011) 195 Cal.App.4th 1135, 1148-1149.
A summons may be served on a corporation by personal delivery to the agent for service of process, the president, CEO or “other head of the corporation,” vice president, secretary, assistant secretary, treasurer, assistant treasurer, controller or CFO of the corporation. Code Civ. Proc. § 416.10(a), (b). Or substitute service may be made by leaving the summons and complaint with a person apparently in charge and mailing a copy to the same address. Code Civ. Proc. 415.20(a).
Here, Plaintiff did not serve the complaint on Pacific Dealer Center’s agent for service of process, the president, CEO or “other head of the corporation,” vice president, secretary, assistant secretary, treasurer, assistant treasurer, controller or CFO of the corporation. The complaint and summons were addressed to someone else entirely (someone called Peter Dames) and left with an office manager.
Service on Pacific Dealer Center was therefore not proper. In the absence of opposition, Plaintiff has not met her burden of showing proper service.
Accordingly, the motion for relief from default is granted.
3. 2023-1356907 Cross-Complainant Live Nation Worldwide Inc.’s (“Live Nation”) Hook vs. Rocha Motion for leave to file an amended cross-complaint is granted.
By the proposed pleading, Live Nation seeks leave to add causes of action for breach of contract and express indemnity against Defendant S & S Labor Force dba JRM Private Security (“JRM”), and add JRM to already-pleaded causes of action for equitable indemnity, contribution, and declaratory relief.
Under Code of Civil Procedure section 473, subdivision (a)(1), “[t]he court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.” The amendment of pleadings is also permitted under Code of Civil Procedure section 576, “at any time before or after commencement of trial, in the furtherance of justice, and upon such