Judge: Andrew E. Cooper, Case: 23CHCV02568, Date: 2024-07-30 Tentative Ruling

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Case Number: 23CHCV02568    Hearing Date: July 30, 2024    Dept: F51

MOTION TO VACATE/SET ASIDE DEFAULT JUDGMENT

Motion Filed: 2/20/24

MOVING PARTIES: Defendants Krikor Barsoumian; and Wicked Motor Works, LLC (collectively, “Defendants”)

RESPONDING PARTY: Plaintiff Ivan Ho (“Plaintiff”)

NOTICE: OK 

RELIEF REQUESTED: An order vacating the default entered against Defendants on 1/25/24 and the default judgment entered against Defendants on 1/29/24.

TENTATIVE RULING: The motion is denied.

Defendants are reminded to review the 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil. When e-filing documents, parties must comply with the “TECHNICAL REQUIREMENTS” which are set forth at page 4, line 4 through page 5, line 12 of the Court’s 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil (particularly bookmarking declarations and exhibits). (CRC 3.1110(f)(4).) Defendants are also reminded that are reminded that all documents “must be text searchable when technologically feasible without impairment of the document's image.” (CRC 2.256(b)(3).) Failure to comply with these requirements in the future may result in papers being rejected, matters being placed off calendar, matters being continued so documents can be resubmitted in compliance with these requirements, documents not being considered and/or the imposition of sanctions.

BACKGROUND

On 8/24/23, Plaintiff filed the instant action against Defendants, alleging the following causes of action: (1) Breach of Written Contract; (2) Open Book Account; (3) Conversion; (4) Fraud; and (5) Money Had and Received. On 11/22/23, Plaintiff filed proofs of service on defendant Wicked Motor Works, LLC by personal service, and defendant Krikor Barsoumian by substituted service.

On 1/25/24, the Court entered default against Defendants. On 1/29/24, the Court entered a default judgment against Defendants in the amount of $106,539.59. On 2/20/24, Defendants filed the instant motion. On 6/13/24, Plaintiff filed his opposition. No reply has been filed to date.

ANALYSIS

“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.” (Code Civ. Proc. § 473, subd. (b).)

Here, individual defendant Barsoumian declares under penalty of perjury that he was never personally served with the Summons and Complaint in the instant action, and only became aware of the proceeding when he was served with Plaintiff’s request for default judgment. (Decl. of Krikor Barsoumian ¶¶ 7, 8.)

The 11/22/23 proofs of service state that defendant Wicked Motor Works, LLC was served by personal service, and that Barsoumian was served by substituted service at his home on 11/16/23. “The return of a [registered] process server … establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.” (Evid. Code § 647.) “The filing of a proof of service creates a rebuttable presumption that the service was proper.” (Floveyor International, Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.)

With respect to service on corporate defendant Wicked Motor Works, LLC, Defendants argue that service was improper because it was not effectuated at the registered business address nor on the authorized agent for service. (Mot. 3:10–4:6.) However, the Court notes that while a corporate defendant may be personally served via its designated agent for service of process, it may also be served via its chief executive officer. (Code Civ. Proc. § 416.10, subd. (b).) Here, the proof of service states that Wicked Motor Works, LLC was served via personal service by registered process server on Krikor Barsoumian, its Chief Executive Officer, on 9/17/23. (11/22/23 Proof of Service.) Defendants do not dispute the validity of the facts stated in the proof of service. Accordingly, the Court finds that Defendants have not met their burden to rebut the presumption that service on Wicked Motor Works, LLC was proper.

With respect to service on individual defendant Barsoumian, Defendants contend that the substituted service on co-resident Ellen Doe, on 11/16/23, at 12224 Edgecliff Avenue, Sylmar, CA 91342-5499, was also improper because Barsoumian has never lived at this address. (Mot. 4:7–17.) Defendants proffer Barsoumian’s sworn declaration attesting thereto. (Barsoumian Decl. ¶ 3.) Plaintiff’s attorney declares in opposition that this address was found after performing a reverse phone search on a public data records system, based on Barsoumian’s known phone number. (Decl. of Lawrence A. Strid, ¶ 8.) Counsel further declares that he was at no time advised that the service of process at this address was effectuated erroneously or mistakenly. (Id. at ¶ 9.)

Based on the foregoing, the Court finds that Defendants have not claimed any “mistake, inadvertence, surprise, or excusable neglect” on their own part or on that of their attorney serving as a basis of relief from their default. (Code Civ. Proc. § 473, subd. (b).) To the extent that Defendants wish to quash service of the complaint and summons, their deadline to do so has passed. (Code Civ. Proc. § 418.10, subd. (a).) Accordingly, the motion is denied.

CONCLUSION

The motion is denied.