Motion to Set Aside/Vacate Default and Judgment
Defendant’s opposition does not respond to this request. Plaintiff is entitled to collect post-judgment interest pursuant to the judgment, which will continue to accrue until paid. 10 25-01498068 1) Motion to Compel Deposition (Oral or Written) 2) Motion to Compel Deposition (Oral or Written) Miller vs. 1 Plaintiff James Miller’s motion to compel third-party witnesses, Joe Collinsworth and Christine Collinsworth, to comply with the Deposition Subpoena for Personal Appearance and Production of Documents and Things is CONTINUED to _________.
California Rules of Court, rule 3.1346 states: “A written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.”
Here, Plaintiff has failed to show that the moving papers were personally served on Joe Collinsworth and Christine Collinsworth as required by California Rules of Court, rule 3.1346. The Proof of Service attached to the Motion shows that the moving papers were served on Joe and Christine Collinsworth by mail. Plaintiff has not shown that Joe and Christine Collinsworth agreed to accept service by mail, accordingly, service was insufficient pursuant to rule 3.1346.
Based on the foregoing, the Motion is CONTINUED to _______. Plaintiff is ORDERED to personally serve the moving papers on Joe and Christine Collinsworth no later than 16 court days before the continued hearing and file a proof of service no later than 5 court days prior to the continued hearing.
Plaintiff to give notice. 12 25-01460537 Motion to Compel Production
Palomino vs. FCA US, Plaintiff Eduardo Palomino’s Motion to Compel Further Compliance LLC with Code of Civil Procedure section 871.26 is DENIED as moot.
The parties were ordered to file additional papers addressing any remaining issues related to the Motion after meet and conferring. No further papers were filed. Thus, the Motion is moot.
15 24-01372004 Motion to Set Aside/Vacate Default and Judgment
The Irvine Company The motion of defendant Kyunghee Noh moves for an order to set aside LLC vs. The Mugs Alton and vacate the default and default judgment entered against her is Irvine Inc. GRANTED.
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Discussion. Defendant Kyunghee Noh moves for an order: (1) vacating the entry of default and default judgment against her; (2) quashing enforcement of the judgment and abstract of judgment against her; (3)
granting leave to file the proposed answer that is submitted with the motion; and (4) staying enforcement pending determination of the instant motion. Plaintiff The Irvine Company, LLC, opposes the motion.
Default was entered against moving defendant and the three other codefendants on June 20, 2025 (ROA 60) and default judgment was entered on December 11, 2025 (ROA 84). After entry of default, the defendant cannot file an answer or any motion other than a motion for relief from default. In re Marriage of Nurie (2009) 176 Cal.App.4th 478, 495, fn.
16. Defendant contends that she was not properly served with the summons and complaint and the Court never acquired personal jurisdiction over her. She therefore contends that the default and default judgment are void and should be set aside under Code Civ. Proc. § 473(d). Alternatively, she contends that the default and default judgment should be set aside under Code Civ. Proc. § 473.5 because she did not have notice of the action in time to defend against it. She contends that she did not know about the action until she learned of a judgment lien against her residence in La Habra.
Plaintiff contends that moving defendant was properly served through substituted service by a registered process server. Plaintiff also contends that moving defendant was avoiding service and that she lacks credibility.
With regard to moving defendant’s first argument, when a defendant challenges the court's personal jurisdiction on the ground of improper service of process the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service. Summers v. McClanahan (2009) 140 Cal.App.4th 403, 413. See also American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 387.
The proof of service filed by plaintiff on April 14, 2025 purports to show that moving defendant was served with the summons on first amended complaint and first amended complaint by substituted service on April 8, 2025. (ROA 58.) The proof of service indicates that the process server served moving defendant at her residence on Torrey Pines Court in La Habra by leaving the documents with a competent member of the household who was at least 18 years old and by thereafter mailing copies of the documents to her at the same address.
In the declaration of diligence filed with the POS, the process server declares that unsuccessful attempts to serve the moving defendant were made everyday between March 25, 2025 and March 29, 2025. The process server further declares that on April 8, 2025, the documents were left with a male adult who answered the door and would not divulge his name. The process server declares that the documents were tossed into the residence before the man who answered the door slammed it shut.
Plaintiff offers absolutely no evidence that moving defendant actually resided at the address in La Habra where the documents were left and mailed to. The copy of the guaranty submitted by responding with the opposition does not show an address for moving defendant; it merely gives an address in Chino for notices to the guarantors.
Thus, notwithstanding the declaration of the process server submitted with the proof of service and the declaration of a representative of plaintiff’s property manager submitted with the opposition, plaintiff has not shown that service of the moving defendant was proper and effective and that the Court acquired personal jurisdiction over the moving defendant. The resulting default and default judgment against her are void. 16 26-01538511 Motion to Compel Arbitration
Yazdani vs. Tesla, Inc. The motion of defendant Tesla, Inc. for an order compelling plaintiff Sohrab Yazdani to arbitrate the claims in this matter and staying the court action pending the outcome of the arbitration is GRANTED.
Under both federal and state law, the threshold question presented by a petition to compel arbitration is whether there is an agreement to arbitrate. Herzog v. Superior Court (2024) 101 Cal.App.5th 1280, 1293. This threshold inquiry stems from the basic premise that arbitration is consensual in nature. B.D. v. Blizzard Entertainment, Inc. (2022) 76 Cal.App.5th 931, 943. Thus, while California public policy favors arbitration, there is no policy compelling persons to accept arbitration of controversies that they have not agreed to arbitrate. Ibid.
General principles of contract law determine whether the parties have entered into a binding agreement to arbitrate. B.D. v. Blizzard Entertainment, Inc., supra, 76 Cal.App.5th at p. 943. Mutual assent, or consent, of the parties is essential to the existence of a contract and consent is not mutual unless the parties all agree upon the same thing in the same sense. Ibid. Mutual assent is determined under an objective standard applied to the outward manifestations or expressions of the parties, i.e., the reasonable meaning of their words and acts, and not their unexpressed intentions or understandings. Ibid. If an offeree objectively manifests assent to an agreement, the offeree cannot avoid a specific provision of that agreement on the ground the offeree did not actually read it. Ibid.
These consent principles apply with equal force to arbitration provisions contained in contracts purportedly formed over the Internet. B.D. v. Blizzard Entertainment, Inc., supra, 76 Cal.App.5th at p. 943. While internet commerce has exposed courts to many new situations, it has not fundamentally changed the requirement that mutual manifestation of assent, whether by written or spoken word or by conduct, is the touchstone of contract. Ibid.
In the world of paper contracting, the outward manifestation of assent to the same thing by both parties is often readily established by the offeree's receipt of the physical contract. B.D. v. Blizzard Entertainment,