Penan v. Molina CA3

Filed 1/25/23 Penan v. Molina CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

ALAN PENAN, C094425

Plaintiff and Appellant, (Super. Ct. No. 34-2016- 00199591-CU-MM-GDS) v.

MIGUEL MOLINA,

Defendant and Respondent.

After default was entered against defendant Miguel Molina in plaintiff Alan Penan’s civil action, the trial court set aside default and granted defendant’s motion to dismiss the action. On appeal, plaintiff contends the trial court erred. We affirm. FACTUAL AND PROCEDURAL BACKGROUND In August 2016, plaintiff filed a tort action naming multiple defendants, including defendant. Later, plaintiff filed a proof of service in the trial court, stating someone with defendant’s name was served on April 19, 2017, via personal service at an address in

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North Highlands, California. In September 2020, plaintiff sought and obtained entry of default against defendant. Defendant filed a motion to set aside the default in January 2021, along with a declaration stating he (1) had “never been served with any document” in the case, (2) had never lived at or been to the North Highlands address where the April 2017 service of process occurred, and (3) “knew nothing about” the case until around November 2020. Plaintiff opposed the motion, arguing inter alia that defendant’s failure to file a motion to quash service of summons with the motion to set aside default was fatal to the motion to set aside default. Plaintiff also argued that if the trial court were to grant defendant’s motion, it should impose monetary sanctions on defendant. The matter first came on for hearing on February 16, 2021. In light of the COVID-19 pandemic, personal appearances were not permitted by the superior court and the hearing was to be conducted remotely via CourtCall or Zoom. At the scheduled hearing, both parties appeared remotely on video via Zoom. However, plaintiff was apparently unable or unwilling to unmute himself to engage in oral argument, so the matter was continued to February 24, 2021, and both parties were ordered to appear remotely. Plaintiff did not appear at the February 24, 2021 hearing, and the trial court affirmed its tentative ruling, granting the request to set aside default. On February 25, 2021, and again on March 16, 2021, plaintiff filed a request for oral argument on the motion to set aside, which the trial court denied on March 16, 2021. The trial court set aside default in a written ruling, explaining: (1) defendant’s declaration overcame the presumption of validity that the process server’s declaration was entitled to; (2) Code of Civil Procedure section 473.51 permits a party to move to set aside default if service of process did not result in actual notice to the party; and (3) it