Levi Jonathan Potter vs Brandon Tyree Smith et al

Case Number

24CV03417

Case Type

Hearing Date / Time

Mon, 08/25/2025 - 10:00

Nature of Proceedings

Motion: Set Aside Default Judgment

Tentative Ruling

Levi Jonathan Potter v. Brandon Tyree Smith, et al.          

Case No. 24CV03417

           

Hearing Date: August 25, 2025                                  

HEARING:              Motion of Cross-Defendant Jordan Alexander Lopez to Set Aside Entry of Default

ATTORNEYS:        For Plaintiff Levi Jonathan Potter: William A. Percy, Daniel Z. Weinberg, Hillstone Law PC

                             For Defendant Brandon Tyree Smith: No Appearance

                                    For Defendant and Cross-Defendant Jordan Alexander Lopez: Okorie Okorocha

                                    For Defendant and Cross-Complainant Michael Christian Lee: Ron Bamieh, Danielle De Smeth, Meghan C. Sherry, Bamieh & De Smeth PLC

                                    For Defendant Jude Issam Hallal: No Appearance

                                    For Defendant Alisha Adrianna Camara: Luis Esparza, Esparza Law Group P.C.

                       

TENTATIVE RULING: Cross-Defendant Jordan Alexander Lopez’s motion to set aside entry of default is denied without prejudice.

Background:

This action commenced on June 18, 2024, by the filing of the complaint by plaintiff Levi Jonathan Potter (“Potter”) against defendants Brandon Tyree Smith (“Smith”), Jordan Alexander Lopez (“Lopez”), Michael Christian Lee (“Lee”), Jude Issam Hallal (“Hallal”), and Alisha Adrianna Camara (“Camara”) for: (1) Negligence; (2) Assault; (3) Battery; (4) Intentional Infliction of Emotional Distress; (5) Negligent Infliction of Emotional Distress; (6) Conversion; and (7) False Imprisonment.

As alleged in the complaint:

On June 2, 2023, Potter was invited to his friends’ apartment at 4651 Gerona Way, Santa Barbara. (Compl., ¶ 3.) When Potter entered the apartment, Smith attacked Potter, and then Lopez, with the help of Smith, Lee, and Hallal, grabbed Potter by the throat and choked him. (Ibid.) Camara also took part in the beating. (Ibid.) Smith, Lee, Hallal, and Lopez then beat Potter with a bat and robbed him. (Ibid.) Following more physical altercation, Potter was able to escape and someone in the apartment complex contacted 911. (Ibid.) Potter lost consciousness and woke up in the hospital. (Ibid.)

On October 2, 2024, Camara answered the complaint with a general denial and 21 affirmative defenses.

On January 23, 2025, Lopez answered the complaint with a general denial and 40 affirmative defenses.

On March 26, 2025, Lee answered the complaint with a general denial and 14 affirmative defenses.

Also on March 26, 2025, Lee filed his cross-complaint against Lopez for: (1) Contribution; (2) Implied Indemnity; and (3) Declaratory Relief. As relevant here, Lee served Lopez, through Lopez’s attorney of record, via email, on March 26, 2025. (Sherry Decl., ¶ 2 & Exh. A.) [Note: Sherry’s declaration incorrectly declares that the cross-complaint was served on March 23, 2025. The proof of service, as well as the date of the email, show that it was actually served on March 26.) The email to Lopez’s counsel shows that there was an attachment titled “2025.03.26 Lee Cross-Complaint.pdf.”

 On May 7, 2025, Lee’s counsel sent an email to Lopez’s attorney stating: “On March 23, 2025, our office filed and served a compulsory cross-complaint on behalf of Mr. Lee against your client, Jordan Alexander Lopez. Mr. Lopez’s responsive pleading was due April 29, 2025, but to the best of our knowledge one has not been served or filed. We will hold off requesting an entry of default if your office intends on filing a responsive pleading on Mr. Lopez’s behalf. Kindly let us know if that is the case or if we should proceed with the default.” (Sherry Decl., ¶ 3 & Exh. B.)

On May 27, 2025, Lee’s counsel sent an email to Lopez’s attorney stating: “Your client was served with a cross-complaint but no discovery. Do you intend an answer on his behalf? We are prepared to default.” (Sherry Decl., ¶ 4 & Exh. C.)

On June 5, 2025, Lee filed his request for default, which was entered by the Clerk of the Court. According to the proof of service, the request for entry of default was served on Lopez’s counsel, as well as other counsel in this case, on the same date via electronic service.

Also on June 5, 2025, Lopez’s counsel sent an email to Lee’s attorney stating: “I never got served with the complaint. Where was it sent? Why wouldn’t you just call instead of filing a default? Where does all this get you?” (Sherry Decl., ¶ 5 & Exh. D.)

Lopez now moves to set aside the default arguing that he was never served with Lee’s default judgment package and that he had no actual notice of the cross-complaint.

Lee opposes the motion.

Analysis:

            Electronic Service

By way of his motion, Lopez states: “TO ALL COUNSEL: PLEASE TAKE NOTICE THAT DEFENDANT AND CROSS DEFENDANT JORDAN LOPEZ REVOKES THE ACCEPTANCE OF ANY ELECTRONIC SERVICE.”

Lopez is represented by counsel and is not permitted to “revoke” the acceptance of electronic service.

“A person represented by counsel, who has appeared in an action or proceeding, shall accept electronic service of a notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission.” (Code Civ. Proc., § 1010.6, subd. (b)(2), italics added.)

“Except when personal service is otherwise required by statute or rule, a party or other person that is required to file documents electronically in an action must also serve documents and accept service of documents electronically from all other parties or persons, unless:

“(A) The court orders otherwise, or

“(B) The action includes parties or persons that are not required to file or serve documents electronically, including self-represented parties or other self-represented persons; those parties or other persons are to be served by non-electronic methods unless they affirmatively consent to electronic service.” (Cal. Rules of Court, rule 2.251(c)(3).)

“An electronic service address is presumed valid for a party or other person if the party or other person files electronic documents with the court from that address and has not filed and served notice that the address is no longer valid.” (Cal. Rules of Court, rule 2.251(g)(3).)

So long as Lopez is represented by counsel, he is required to accept electronic service at the email address listed for Lopez’s counsel, which is OO@OOESQ.COM. If there is an issue with that email address, it is incumbent upon Lopez’s counsel to provide a proper email address for service.

            Motion to Set Aside Default

Lopez brings his motion pursuant to Code of Civil Procedure section 473.5, which provides:

“(a) When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.

“(b) A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.

“(c) Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.”

By way of declaration, Lopez’s counsel declares:

“I was unaware of, and had no actual notice of either Cross-Complainant’s cross-complaint or these actions, and I was never served with a copy of the cross-complaint or the default package.” (Okorocha Decl., ¶ 2.)

“Only after I [w]as served with a copy of the default judgment did I become aware of []these pleadings and actions.” (Okorocha Decl., ¶ 3.)

“I never took any steps to avoid service of the Cross-Complaint, and I never acted with inexcusable neglect.” (Okorocha Decl., ¶ [4].) [Note: Okorocha’s declaration is misnumbered by including two paragraphs numbered “3.” The court refers to the second paragraph 3 by its proper number 4.]

The evidence provided by Lee directly contradicts Lopez’s attorney’s declaration. Lopez did not file any reply to Lee’s opposition to address the evidence presented and the evidence is credible. As Lopez had already made an appearance in this case, both the cross-complaint and the request for entry of default were properly served on Lopez via electronic service. In addition, Lee has provided proof that his attorney’s office reached out to Lee’s attorney twice, regarding the cross-complaint, before filing the request for default. Lopez’s attorney also sent an email to Lee’s attorney from the same email address, evidencing that the email address is valid.

Because Lopez fails to provide any credible evidence that he was not served with the cross-complaint and had no actual notice of it, and Lee has provided credible evidence that it was properly served, Lopez’s motion to set aside the default based on Code of Civil Procedure section 473.5 must be denied.

However, without considering it here, the question remains as to whether a motion to set aside the default based on other grounds, such as Code of Civil Procedure section 473, subdivision (b) would be successful. The court notes that a proper attorney affidavit of fault under section 473 would, except in very limited circumstances, make the setting aside of the default mandatory.

The trial court has broad discretion to vacate the judgment and/or the clerk’s entry of default that preceded it.  However, “this discretion may be exercised only after the party seeking relief has shown that there is a proper ground for relief, and that the party has raised that ground in a procedurally proper manner, within any applicable time limits.” (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.)

Due process requires that Lopez timely follow the proper procedural steps to proceed under section 473, or other proper grounds, provide relevant legal authority and evidence, and afford Lee an opportunity to oppose a motion brought pursuant to that authority. As such, the denial of the motion will be without prejudice.