Carnations Home, Inc. vs. The Hills Senior Living

that he was informed by the current tenant at 510 W Central Ave Unit B, Brea, CA 92821 that Bonavita was the previous tenant. The current tenant is Wolverine Fire. (See, Exh. 1, p. 2.)

Plaintiff does not proffer any evidence however to establish that Bonavita’s registered process server resigned, there is no current replacement, or identify the address designated for personal delivery of the process. While these contentions are stated as arguments in the application, argument of counsel contained in a points and authorities are not evidence. (Muskan Food & Fuel, Inc. v. City of Fresno (2021) 69 Cal.App.5th 372, 389-390.)

As such, Plaintiff has not made the necessary showing for service of summons upon the Secretary of State pursuant to Corporations Code section 17701.16. The application is therefore DENIED without prejudice.

Plaintiff to give notice.

5 Carnations Home, Motion to Set Aside Default Inc. vs. The Hills (Status Conference re Default Judgment) Senior Living 1. Motion to Set Aside Default

The hearing on this motion was continued from 6/26/26. At the 6/26/26 hearing on the motion, the court posted a tentative ruling granting the motion. Plaintiffs requested an opportunity to provide further briefing on an issue that Defendants explicitly raised in reply (i.e., for relief under Section 473(d) of the Code of Civil Procedure). The motion was originally noticed under subsection “b” of Section 473. At Plaintiff’s request, the court continued the hearing on the motion to allow Plaintiffs to file a supplemental opposition and Defendants to file a supplemental response to the opposition.

The parties thereafter filed timely supplemental briefing, which this court has considered.

The court GRANTS Defendants CHERRY CERAME, CHRISTOPHER CERAME, and MTE27, INC.’s (the Moving Defendants) motion to set aside their defaults.

RJN: The court GRANTS Moving Defendants’ requests for judicial notice concerning three court records. (Evid. Code, § 452(d).)

Plaintiffs’ supplemental opposition primarily argues that Defendants cannot now challenge the defects in the service of the summons and complaint because Defendants waived those defects by making general appearances approximately five times in this case. The court disagrees.

A general appearance need not be a formal, technical step or act. (Nam Tai Electronics, Inc. v. Titzer (2001) 93 Cal.App.4th 1301, 1307). “What is determinative is whether defendant takes part in the particular action which in some manner recognizes the authority of the court to proceed.” (Id.) “The appearance will be considered ‘general’ in nature if the defendant acts in a manner, ‘showing of a “purpose of obtaining any ruling or order of the court going to the merits of the case.’” (Id.)

Here, none of the five examples that Plaintiffs provide constitute a general appearance.

First, Plaintiffs argue that an 4/25/25 letter from Defendants requesting extensions of time to file responses to the complaint constitute a general appearance. An order by a judge extending the time for defendants to respond to a complaint does not constitute a general appearance in the action. (Davenport v. Superior Court of Cal. in and for Imperial County (1920) 183 Cal. 506, 509). Here, an informal letter that was never filed with the court does not give rise to a general appearance and it does not go towards obtaining a ruling on the merits of the case.

Second, Plaintiffs argue that a 2/13/26 response to default, Defendants’ motion to set aside default, Defendants’ appearing at an 4/13/26 conference regarding the default proceedings, and Defendants appearing for a hearing on their motion to st aside default all constitute general

appearances. Each of these actions however have the opposite effect of the court ruling on the merits of the case. Rather than allowing default proceedings to proceed, Defendants, in each of these instances, challenge service as defective and ask the court to do the opposite of determining the merits of this case. Rather, Defendants argued that the court lacked jurisdiction due to ineffective service. The court finds that the reasoning of the following case particularly applicable to Plaintiffs’ arguments here:

“It is further wholly unthinkable that a void default judgment predicated on such a void order for service and such a void entry of default must be upheld upon the purported premise that the motion to vacate the default constituted a general appearance of such nature as to cure the insufficiencies of the void order for service and of the void entry of default based on the void service.” (Batte v. Bandy (1958) 165 Cal.App.2d 527, 539). Where a defendant is asking to void the entry of default for lack of effective service, “it would be absurd to hold that [defendant’s] motion to vacate the default amounted in substance to a consent that the default judgment could be entered against it.” (Id.) “It would be equally absurd to hold that a motion to vacate the entry of a default, made on the ground that the affidavit and order for the substituted service were void, constitutes a general appearance of such nature as to cure the insufficiency of said affidavit and void order for service, since the purpose of the motion to vacate the default was to challenge the sufficiency of said affidavit and order for substituted service.” (Id.)

The court agrees with the reasoning in Batte. It would be absurd to hold that Defendants’ actions in attempting to set aside a default that Defendants contend are based on ineffective service constitutes a general appearance.

For these reasons, Plaintiffs’ arguments in the supplemental opposition does not change the court’s analysis or ruling.

As such, the court GRANTS Defendants CHERRY CERAME, CHRISTOPHER CERAME, and MTE27, INC.’s (the Moving Defendants) motion to set aside their defaults.

Where defendants were not properly served with the Summons and Complaint, any defaults entered against them are void. (See, e.g., First American Title Ins. Co. v. Banerjee (2022) 87 Cal.App.5th 37, 42; Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1200.) Moreover, where the default was void, the motion to vacate the default is not subject to the six-month limitation contained in section 473 of the Code of Civil Procedure. (Braugh v. Dow (2023) 93 Cal.App.5th 76, 86.)

As explained below, Moving Defendants show they were not properly served with the Summons and Complaint, and Plaintiffs do not show otherwise.

Plaintiffs apparently served all three Moving Defendants at 22800 Savi Ranch Parkway, Suite 200, Yorba Linda, CA 92887 (“Savi Ranch Address”). MTE27 was purportedly personally served through “Allen Medina – Authorized Agent for Service of Process,” while the Cherry Cerame and Christopher Cerame were purportedly served by substituted service, and through “Vanessa B., Office Manager.”

Plaintiffs’ own Complaint, as well as evidence presented by Moving Defendants, show that the Savi Ranch address was not MTE27’s principal address, nor was Allen Medina its authorized agent for service of process.

Instead, MTE27’s principal address, and its mailing address, is 31506 Kailua Drive, Winchester, CA 92596. MTE27’s agent for service of process is 1505 Corporation, California Registered Agent, Inc. (Cherry Cerame Decl., ¶ 4; Christopher Cerame Decl., ¶ 4; see also Compl., ¶¶ 22-24 [alleging that MTE’s principal place of business is the Kailua address].)

Moving Defendants also proffer evidence that neither “Vanessa B.” nor Allen Medina (a co-defendant) are present employees of MTE, nor were they employees at the time of the purported service of the Summons and Complaint. (Cherry Cerame Decl., ¶ 3; Christopher Cerame Decl., ¶ 3.)

Cherry Cerame and Christopher Cerame also declare that they were not served with the Summons and Complaint. (Cherry Cerame Decl., ¶ 6; Christopher Cerame Decl., ¶ 6.)

Apparently, during Plaintiffs’ first attempt to serve Cherry Cerame and Christopher Cerame, Allen Medina advised the process server that neither Cherry Cerame nor Christopher Cerame worked at the office. (RJN, Exhs. B and C.)

It appears Plaintiffs knew, or should have known, the Savi Ranch Address was not the correct address to serve any of the three Defendants.

And while Plaintiffs present evidence that Defendants had actual notice of the lawsuit (York Decl., Exh. A), knowledge of a lawsuit is insufficient. The court does not acquire jurisdiction over a defendant simply because they had actual notice of the lawsuit. (See, e.g., Sternbeck v. Buck (1957) 148 Cal.App.2d 829, 838-839; Braugh v. Dow (2023) 93 Cal.App.5th 76, 88-89 [plaintiff’s non-compliance with the service of process rules was an issue of fundamental jurisdiction, rather than a mere technicality, such that the judgment or order is void even in the face of actual notice].)

In sum, the motion is GRANTED. The entry of default against each of the Moving Defendants is VACATED. (See ROA 67 [default entered on 4/29/25 against Cherry Cerame]; ROA 70 [default entered 4/29/25 against Christopher Cerame]; and ROA 86 [default entered on 4/29/25 against MTE27, Inc.]

In light of the ruling, the court sets a Case Management Conference (CMC), set for February 1, 2027 at 10:00 am in Dept. W8. All appearing parties SHALL file and serve a new and timely case management conference statement at least 15 calendar days prior to the continued hearing as required by the rules, including California Rules of Court rule 3.725 and Local Rule 369. Failure to do so may result in the imposition of monetary sanctions of $500.00 against the offending party and/or its attorney of record.

The court also sets an Order to Show Cause (OSC) re Sanctions, including Dismissal for Plaintiff’s Failure to

Serve and Prosecute. Plaintiffs are ordered to appear and ordered to file a Proof of Service re Summons and Complaint on all unserved defendant(s) at least 10 court days before the hearing. If Plaintiffs fail to do so, the court will dismiss the action against any unserved defendant at the hearing unless Plaintiffs appear and show good cause otherwise. (See Cal. Rules of Court, rule 3.110(f); Orange County Superior Court Local Rule 381.)

The OSC re Sanctions/Dismissal will be the same date, time and place as the new CMC.

Plaintiffs to give notice.

2. Status Conference

In light of the ruling on the motion to set aside, the court takes the Status Conference re Default Judgment OFF- CALENDAR.

As previously mentioned, the Complaint treats all of the defendants together. As such, the court will not proceed with a default judgment against the remaining defaulted defendants until trial or when all of the named defendants have been defaulted or dismissed.

Plaintiffs to give notice.

7 Timanus vs. Motion to Tax Costs Melrose Recovery LLC. The court DENIES Plaintiff TRINA TIMANUS’ motion to strike or tax the memorandum of costs filed by counsel for Defendants WALTER YBARRA (Ybarra) and RESTORATIONS HEALTH CARE LLC (Restoration).

As against Defendant Ybarra, Plaintiff is clearly the prevailing party. A jury determined found that Ybarra owes Plaintiff $603,292.00 on the Second Amended Complaint.

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