Sylvester v. Marshall CA2/3

Filed 5/19/15 Sylvester v. Marshall CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

JAMES H. SYLVESTER, B251626

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. SC116848) v.

MEARL L. MARSHALL et al.,

Defendants and Respondents.

APPEAL from an order of the Superior Court of Los Angeles County, Richard A. Stone, Judge. Affirmed. James H. Sylvester, in pro. per., for Plaintiff and Appellant. No appearance for Defendants and Respondents. _________________________

INTRODUCTION Plaintiff and appellant James Sylvester obtained a default judgment against defendants Mearl and Naseem Marshall, after they failed to respond to the summons and complaint. The Marshalls moved to quash service of the summons and to set aside the default judgment, on the grounds they were never served and did not have actual notice of the action. The trial court granted the motion. Sylvester appeals from the order granting the Marshalls’ motion. We affirm. FACTUAL AND PROCEDURAL BACKGROUND On April 27, 2012, Sylvester sued the Marshalls for breach of contract, seeking repayment of two loans. Sylvester filed proofs of service of the summons and complaint. When the Marshalls didn’t respond to the summons and complaint, their default was entered. Default judgment was eventually entered against the Marshalls on October 17, 2012, in the amount of $248,578. The minute order stating that judgment was entered was mailed only to Sylvester, but Sylvester filed a proof of service of the judgment on the Marshalls. On August 22, 2013, the Marshalls moved to quash service of the summons and complaint and to set aside the default judgment. The Marshalls asserted that the proofs of service Sylvester filed were fraudulent. The Marshalls were at church when the summons and complaint were allegedly personally served at 7:00 p.m. on May 1, 2012. They did not receive the request for entry of default and statement of damages. The Marshalls first “discovered” this action on April 21, 2013, when they received an abstract of judgment from the county recorder’s office. To support their motion, the Marshalls also submitted their attorney, Gerard Fierro’s, declaration. Fierro had represented Sylvester’s ex-wife, Mumtaz Chunara, in her divorce action against Sylvester.1 In that action, Sylvester filed motions that Fierro never received. Sylvester also presented a settlement agreement allegedly signed by Pedram Mansouri, Chunara’s former attorney.