Lopez v. Rafael David Miranda, et al.

(Stanley Mosk Courthouse: Dept. 735) August 21, 2026 DEPARTMENT 735 LAW AND MOTION RULINGS

Lopez v. Rafael David Miranda, et al. Cross-Complainant Rafael David Miranda's Motion to Set Aside and Vacate Dismissal Issued on October 18, 2024, Pursuant to CCP Sec. 473(d)

In 2023, Defendant Rafael David Miranda filed a Second Amended Cross-Complaint ("SACC") against Cross-Defendants Laura Miranda-Diaz, Jose J. Miranda, Jason J. Jackson, and Francisca Herndanez (collectively, "Cross-Defendants"). On April 10, 2024, Cross-Defendants filed a Motion to Strike the SACC. The court granted the motion on August 7, 2024, because Miranda, who is a vexatious litigant, did not comply with prefiling requirements. Miranda now seeks to set aside and vacate the dismissal of the SACC.

REQUEST FOR JUDICIAL NOTICE

The court takes judicial notice under Evidence Code section 452 subdivisions (c) and (d) of official acts and the contents of its files.

LEGAL STANDARD

"The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order." (Code Civ. Proc., Sec. 473, subd. (d).)

DISCUSSION

Miranda moves the court to grant his motion to set aside and vacate the dismissals entered on October 18, 2024, on the ground that on December 13, 2023, the court's Clerk, W. Apocada inadvertently and by mistake did not enter defaults against Cross-Defendants Francisca Hernandez and Jason Jackson based on valid proofs of service by mail and personal service. Miranda argues that had the clerk entered default against Hernandez and Jackson, their motion to strike the SACC would have been rendered procedurally defective because they would have been deemed outside the court and unable to file any motion to strike or answer to the SACC.

The court docket shows that on December 20, 2023, the court clerk rejected Miranda's December 13, 2023 Requests for Entry of Default as to Hernandez and Jackson because as a trustee, Miranda required representation and the Second Amended Summons and Cross-Complaint could not be served by mail because Hernandez and Jackson had not appeared in the action yet. Miranda argues that he served Hernandez and Jackson by U.S. postal mail service. However, where the defendant has failed to appear in the action, service of an amended complaint in the manner provided for service of summons, while not necessarily a requirement for personal jurisdiction, is an essential prerequisite to a valid default judgment.

The manner provided for service of summons includes personal service, substitute service, service by mail with notice and acknowledgment of receipt of summons, and service by publication. (Code Civ. Proc., Sec.Sec. 415.10, 415.20, 415.30, 415.50.) Thus, service by U.S. postal mail service, as shown in the December 11, 2023 Proof of Service, alone is insufficient. (12/11/23 Proof of Service.) Accordingly, the clerk's rejection of Miranda's Requests for Entry of Default as to Hernandez and Jackson does not amount to a clerical error.

CONCLUSION

The Court denies Cross-Complainant Rafael David Miranda's motion to set aside and vacate the dismissal issued on October 18, 2024. Plaintiff is ordered to give notice of this ruling. | Home -->)" -->