Judge: Andrew E. Cooper, Case: 24CHCV00077, Date: 2024-10-23 Tentative Ruling

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Case Number: 24CHCV00077    Hearing Date: October 23, 2024    Dept: F51

MOTION TO VACATE/SET ASIDE DEFAULT JUDGMENT

Motion Filed: 5/31/24

MOVING PARTIES: Defendant Bushra Mammo (“Defendant”)

RESPONDING PARTY: Plaintiff Blanca Alejandra Castro Rizzo (“Plaintiff”)

NOTICE: OK

RELIEF REQUESTED: An order quashing Plaintiff’s service of the complaint and summons on Defendant and vacating the default judgment entered against Defendant on 4/25/24.

TENTATIVE RULING: The unopposed motion is granted in part. Defendant is relieved from the entry of default and default judgment against her. Defendant to separately file and serve her proposed answer within 10 days.

BACKGROUND

On 1/8/24, Plaintiff filed the instant action against Defendants, alleging the following causes of action: (1) Violation of Los Angeles Municipal Code § 151.00 et seq.; (2) Failure to Pay Relocation Amount in Violation of Los Angeles Rent Stabilization Ordinance; (3) Violation of Civil Code § 789.3; (4) Negligence; (5) Fraudulent Misrepresentation; (6) Nuisance; (7) Intentional Infliction of Emotional Distress; and (8) Unjust Enrichment. On 2/1/24, Plaintiff filed a proof of service stating that the complaint and summons were personally served on Defendant on 1/22/24.

On 4/22/24, the Court entered default against Defendants. On 4/25/24, the Court entered a default judgment against Defendants in the amount of $124,585.00. On 5/31/24, Defendant filed the instant motion. No opposition 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).) “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.)

Here, Defendant argues that she “was never personally served in this matter and disputes the alleged January 22, 2024 personal service upon her as wholly false.” (Def.’s Mot. 3:20–21, citing Decl. of Bushra Mammo ¶ 8.) To the extent that Defendant requests an order quashing the purported personal service of the complaint and summons, this request is untimely. A defendant may move, “on or before the last day of his or her time to plead,” to quash the service of summons by alleging a lack of personal jurisdiction, or to dismiss the action on the ground of inconvenient forum. (Code Civ. Proc. § 418.10, subd. (a).) Here, as Defendant was purportedly personally served on 1/22/24, she had until 2/21/24 to move to quash the service. Based on the foregoing, the Court denies Defendant’s request to quash the service of the summons and complaint.

To the extent that Defendant seeks mandatory relief from the default judgment against her based on her attorney’s mistake, inadvertence, surprise, or excusable neglect, Defendant has not provided the Court with the requisite attorney affidavit of fault, and therefore is not entitled to this form of relief. (Code Civ. Proc. § 473, subd. (b).)

To the extent that Defendant seeks discretionary relief from the default judgment against her based on her own mistake, inadvertence, surprise, or excusable neglect, Defendant contends that she “only received notice of this matter because a copy of the complaint was sent to a restaurant owed [sic] by the Defendants [sic] son.” (Def.’s Mot. 3:4–5, citing Mammo Decl. ¶ 4.) Defendant argues that the parties attempted to informally resolve the matter, but were unsuccessful, and that she discovered the default judgment only when she directed her son to ask her attorney to check the case status. (Mammo Decl. ¶¶ 5–7.) Thereafter, Defendant declares that she diligently took action to have her attorney contact Plaintiff’s counsel and file the instant motion. (Id. at ¶ 9.)

The Court notes that Plaintiff has failed to oppose the instant motion, and that “because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.) Based on the foregoing, the Court finds that Defendant is entitled to relief from the default judgment entered against her on 4/25/24. The Court further notes the lack of proofs of service on Defendant of the entry of default and default judgment against her. Accordingly, the unopposed motion is granted pursuant to Code of Civil Procedure section 473, subdivision (b).

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CONCLUSION

The unopposed motion is granted in part. Defendant is relieved from the entry of default and default judgment against her. Defendant to separately file and serve her proposed answer within 10 days.