Preovolos Lewin, ALC v. Ponce CA4/1

Filed 5/2/23 Preovolos Lewin, ALC v. Ponce CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

PREOVOLOS LEWIN, ALC, D080406

Plaintiff and Respondent,

v. (Super. Ct. No. 37-2021- 00034729-CU-BC-CTL) AURORA PONCE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, John Meyer, Judge. Affirmed.

Aurora Ponce, in pro. per., for Defendant and Appellant. Preovolos Lewin, ALC and James M. Hester for Plaintiff and Respondent. Aurora Ponce appeals a default judgment entered against her and in favor of Preovolos Lewin, ALC (Preovolos Lewin) on March 23, 2022. She contends she did not receive actual notice of the lawsuit until after the

default judgment was entered and argues Code of Civil Procedure1 section 473.5 allows a court to set aside a default judgment in that circumstance. Ponce did not, however, file a motion seeking that relief below. We affirm the default judgment. FACTUAL AND PROCEDURAL BACKGROUND Preovolos Lewin filed a form complaint against Ponce for breach of contract and common counts, on August 13, 2021. Attached to the complaint was an attorney-client fee agreement between Preovolos Lewin (the attorney), and Ponce and Robert B. Ryan (the clients). The complaint sought damages in the amount of $25,464.96, plus fees and costs. On September 9, 2021, Preovolos Lewin filed a proof of service of the summons and complaint by substituted service. The proof of service stated that on August 29, 2021, a registered process server left the summons and complaint with a male occupant at 5313 Old Dairy Court, Bonita, California 91902 (the Old Dairy Court address). A declaration of mailing certified that the summons and complaint were mailed to the Old Dairy Court address the next day. A declaration of diligence showed that the process server previously attempted to personally serve Ponce at the Old Dairy Court address on August 19, 22, 24, and 26, 2021. Preovolos Lewin filed a request for entry of default and a clerk’s judgment. On March 23, 2022, the clerk entered a default judgment against Ponce in the amount of $27,905.71, including fees and costs. On April 1, 2022, Ponce filed an ex parte application, which stated that the type of relief requested was “REMOTE APPEARANCE (PLAINTIFF