Jonathan Neil & Associates Inc vs Peter Van Bregmann, Jr et al

Case Number

25CV01001

Case Type

Hearing Date / Time

Mon, 09/22/2025 - 10:00

Nature of Proceedings

Motion: Set Aside Set-Aside Default Judgment and Stay Execution

Tentative Ruling

Jonathan Neil & Associates, Inc. v. Peter Van Bregmann Jr., et al.                 

Case No. 25CV01001

           

Hearing Date: September 22, 2025                           

HEARING:              Motion of Defendant Peter Van Bregmann Jr. to Set Aside Default and Default Judgment

ATTORNEYS:        For Plaintiff Jonathan Neil & Associates, Inc.: Bruce A. Hatkoff, Natalia A. Minassian, Hatkoff & Minassian

                             For Defendant Peter Van Bregmann, Jr.: Self Represented

                                    For Defendant Van Bregmann Industries, Inc.: No Appearance/Default Entered        

                       

TENTATIVE RULING: Defendant Peter Van Bregmann Jr.’s motion to set aside default and default judgment is denied.

Background:

This action commenced on February 18, 2025, by the filing of the complaint by plaintiff Jonathan Neil & Associates, Inc. (“plaintiff”) against defendants Van Bregmann Industries, Inc. (“VBI”) and Peter Van Bregmann, Jr. aka Peter Bregmann (“Bregmann”) (collectively “defendants”) for: (1) Open Book Account; (2) Account Stated; (3) Money had and Received; (4) Breach of Agreement; (5) Breach of Guaranty for Agreement; (6) Breach of Security Agreement; (7) Claim and Delivery; and (8) Conversion.

As alleged in the complaint:

Prior to the initiation of this action, BMO Bank N.A., successor to Bank of the West, assigned its interest in the sums due from defendants to plaintiff. (Compl., ¶ 1(b).)

Defendants executed a Business Line of Credit and Security Agreement wherein defendants were to pay plaintiff’s assignor the sums due in accordance with the terms in the agreement. (Compl., ¶ 18 & Exh. 1.)

Within the last four years, defendants defaulted and became indebted to plaintiff’s assignor, on an open book account, in the sum of $124,999.27. (Compl., ¶¶ 8, 19.)

Each of the defendants executed, and delivered to plaintiff’s assignor, a Commercial Guaranty whereby each of the defendants guaranteed and promised to be answerable to plaintiff’s assignor for all sums due by VBI to plaintiff’s assignor. (Compl., ¶ 24.)

On April 28, 2025, plaintiff filed a proof of service evidencing substituted service on VBI, of the summons, complaint, civil case cover sheet, and civil case cover sheet addendum, at a UPS Store located at 3905 State Street, Santa Barbara, on March 4, 2025. On March 10, 2025, the documents were mailed to VBI at the place where the copies were left. On April 29, 2025, plaintiff filed a proof of service evidencing the same substitute service on Bregmann.

Having received no answer, or other responsive pleading, to the complaint, on April 29, 2025, plaintiff filed a request for entry of default as to both defendants, which was entered by the Court Clerk.

On June 23, 2025, default judgment was entered against defendants in the total amount of $147,081.55, consisting of damages, prejudgment interest, attorney’s fees, and costs.

On June 25, 2025, Bregmann filed the present motion to set aside default and default judgment, pursuant to Code of Civil Procedure section 473, subdivisions (b) and (d), arguing that service was invalid and that there is excusable neglect due to Bregmann’s homelessness.

Plaintiff opposes the motion.

Analysis:

Bregmann’s first argument is that the default and default judgment should be set aside pursuant to Code of Civil Procedure section 473, subdivision (d) because of improper service. That section provides:

“The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”

Bregmann argues: “The judgment must be set aside because Defendant was never personally served, and no proper substitute service occurred. Plaintiff attempted service at a UPS Store mailbox, which is not a ‘dwelling house or usual place of abode’ under CCP § 415.20.” (Motion, p. 3, ll. 21-25.)

“[I]f the only address reasonably known for the person to be served is a private mailbox obtained through a commercial mail receiving agency, service of process may be effected on the first delivery attempt by leaving a copy of the summons and complaint with the commercial mail receiving agency in the manner described in subdivision (d) of Section 17538.5 of the Business and Professions Code.” (Code Civ. Proc., § 415.20. subd. (c).)

“Every person receiving private mailbox receiving service from a CMRA [commercial mail receiving agency] in this state shall be required to sign an agreement, along with a USPS Form 1583, which authorizes the CMRA owner or operator to act as agent for service of process for the mail receiving service customer. Every CMRA owner or operator shall be required to accept service of process for and on behalf of any of their mail receiving service customers, and for two years after termination of any mail receiving service customer agreement. Upon receipt of any process for any mailbox service customer, the CMRA owner or operator shall (A) within 48 hours after receipt of any process, place a copy of the documents or a notice that the documents were received into the customer’s mailbox or other place where the customer usually receives his or her mail, unless the mail receiving service for the customer was previously terminated, and (B) within five days after receipt, send all documents by first-class mail, to the last known home or personal address of the mail receiving service customer. The CMRA shall obtain a certificate of mailing in connection with the mailing of the documents. Service of process upon the mail receiving service customer shall then be deemed perfected 10 days after the date of mailing.” (Bus. & Prof Code, § 17538.5, subd. (d)(1).)

The proof of service shows that the summons, complaint, civil case cover sheet, and civil case cover sheet addendum were served on UPS Store Clerk Nancy Moreno/CMRA, on March 4, 2025, and thereafter mailed as required. By way of his declaration, at paragraph 3, Bregmann admits that he rents a mailbox at the UPS store where service occurred.

Service was proper.

Bregmann next argues that excusable neglect exists that warrants the setting aside of the default and the default judgment, as contemplated by Code of Civil Procedure section 473, subdivision (b).

“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. . . . Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc., § 473, subd. (b).)

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.)

Unless the motion to set aside default is accompanied by an attorney affidavit of fault, which is not the case here, relief is discretionary, and the burden is on defendant to demonstrate mistake, inadvertence, surprise, or excusable neglect. (See Lorenz v. Commercial Accept. Ins. Co. (1995) 40 Cal.App.4th 981, 989.) The party moving for relief on the basis of “mistake, inadvertence, surprise, or excusable neglect” must show specific facts demonstrating that one of these conditions was met. (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410.)

Here, Bregmann’ entire argument in this regard is: “Defendant is homeless and had no reasonable opportunity to respond to the complaint. This qualifies as excusable neglect warranting relief under CCP § 473(b). Defendant had submitted a fee waiver but had no access to follow up or respond due to lack of notice.” (Motion, p. 4, ll. 2-5.)

Bregmann’s argument, and declaration, fail to provide any information showing specific facts demonstrating how being homeless constitutes excusable neglect. The argument fails.

Further, pursuant to Code of Civil Procedure section 473.5, subdivision (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.”

Bregmann’s motion is not accompanied by an affidavit showing under oath that his claimed lack of actual notice was not caused by his avoidance of service or inexcusable neglect, nor did he file and serve, with the motion, a copy of the answer, motion, or other pleading proposed to be filed in this action as required.

Bregmann’s motion will be denied.