JON SUTHERLIN AS TRUSTEE OF SOUTHERLIN TRUST vs DAVID POWELL

damages allegations against Defendant only (Compl., P.P. 3, 65) must be stricken. To the extent that the Complaint is based on Defendant's vicarious liability as an employer for the actions of the employee driver, punitive damages are unavailable unless the Complaint alleges advance knowledge of the employee's unfitness or ratification pursuant to Civil Code section 3294, subdivision (b). The Complaint fails to do so. Separately, Plaintiff's arguments in support of an award of punitive damages against the employee driver appear nowhere in the Complaint.

The Court initially finds that the Motion to Strike is MOOT as to Portion Nos. 3 and 4. Such paragraphs are pled in association with the second and third causes of action, which were sustained without leave to amend. "Notwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant." (Gov't. Code, Sec. 818.) As to Portion Nos. 1, 2, and 5, the Court finds that such allegations are improper to the extent that they are alleged against Defendant pursuant to Government Code section 818.

In light of this provision, the Court need not reach the applicability Civil Code section 3294, subdivision (b) [regarding punitive damages based on vicarious liability of an employer]. The Court does not opine on whether the Complaint alleges sufficient facts to support a punitive damages award against the employee driver at this time. Accordingly, the Motion to Strike is GRANTED with 30 days leave to amend as to Portions 1, 2, and 5.

OF SOUTHERLIN TRUST vs DAVID POWELL CASE NO.: 26NWUD00821 HEARING: September 10, 2026 @ 9:30 a.m. #18 REVISED TENTATIVE ORDER Defendant David Powell's Motion to Set Aside the Entry of Default is GRANTED. Defendant to give notice.

Background

This unlawful detainer case was filed on May 8, 2026 regarding residential property at 4608 Obispo Ave, Lakewood, CA 90712, County of Los Angeles ("Property"). Plaintiff Jon Sutherlin, as trustee of Southerlin Trust, ("Plaintiff") filed this action against Defendant David Powell and Does 1 to 10 (unnamed occupants). The Complaint alleges that Plaintiff and Defendant Powell (and another non-party tenant who no longer occupies the Property) entered into a lease agreement on January 14, 2014 under a month-to-month tenancy. On March 31, 2026, Defendant Powell served a 30-Day Notice to Landlord indicating that he was terminating

the lease and intended to vacate the Property by April 30, 2026. The Notice also indicated that all other occupants would vacate by that date. Plaintiff accepted the Notice. Plaintiff initiated this UD action to evict all remaining tenants. On June 9, 2026, unnamed Defendant Scott Bachus filed a Prejudgment Claim of Right to Possession. On June 15, 2026, Defendant Bachus filed an Answer. On July 23, 2026, default was entered as to Defendant Powell. On August 26, 2026, the Court granted Plaintiff's Motion for Summary Judgment. (8/26/26 Minute Order.)

Defendant David Powell now moves to set aside the entry of default against him pursuant to Code of Civil Procedure section 473. The Court notes that Defendant primarily argues that the entry of default should be set aside based on lack of proper service. The Court will thus assess the Motion under Civil Code of Procedure section 473, subdivision (d). (See City and County of San Francisco v. Muller (1960) 177 Cal.App.2d 600, 603 ["The nature of a motion is determined by the nature of the relief sought, not by the label attached to it.

The law is not a mere game of words."]; Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 192, citations omitted, ["[A] trial court is 'free to consider the motion regardless of its label.'"].) No opposition has been filed as of September 9, 2026.

Legal Standard

Civil Code of Procedure section 473, subdivision (d) states the following: "The court. . .may, on motion of either party after notice to the other party, set aside any void judgment or order." (Code Civ. Proc., Sec. 473, subd. (d).)

Discussion

Defendant Powell moves to set aside the entry of default on grounds that Plaintiff improperly served him via substituted at the incorrect address. Defendant Powell explains that, on March 31, 2026, he terminated his tenancy by giving 30 days written notice to Plaintiff. (Powell Decl., P. 3.) Defendant Powell also provided his current address in San Bernadino County. (Ibid.) On May 1, 2026, Defendant Powell vacated the Property but kept in communication with Plaintiff's agent. (Ibid.) Defendant Powell argues that, despite him vacating the Property, Plaintiff purports to have served him via substituted service on Defendant Scott Bachus (the remaining tenant) at the Property on May 27, 2026.

Defendant did not become aware of the entry of default until August 13, 2026. (Powell Decl., P. 6.) No opposition has been filed. The Court first addresses timeliness. Motions under Civil Code of Procedure section 473, subdivision (d) to vacate a default that is valid on its face, but that is void for lack of service based on extrinsic evidence, must be brought within a "reasonable time"

after entry of default. (California Capital Ins. Co. v. Hoehn (2024) 17 Cal.5th 207, 212.) The Court finds the Motion was filed within a "reasonable time," less than 1 month after default was entered. "[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.] Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void." (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.) "Under section 473, subdivision (d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service." (Ibid.) "When a defendant argues that service of summons did not bring him or her within the trial court's jurisdiction, the plaintiff has 'the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.'" (American Express Centurion Bank v.

Zara (2011) 199 Cal.App.4th 383, 387.) Here, the Court finds that Defendant Powell was not properly served via substituted service at his residence. According to Defendant Powell, Plaintiff was aware that he no longer resided at the Property, but served him there anyway. Plaintiff has offered no opposition supporting that service was effective, such that this Court acquired jurisdiction over Defendant Powell. Accordingly, Defendant Powell's Motion to Set Aside the Entry of Default is granted. | Home -->)" -->