Judge: Anne Hwang, Case: 22STCV01060, Date: 2024-07-26 Tentative Ruling

Case Number: 22STCV01060    Hearing Date: July 26, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

On January 11, 2022, Plaintiff Araceli Acosta (“Plaintiff”) filed a wrongful death action.

On August 24, 2023, Plaintiff filed an amendment to the complaint, substituting Defendant Akikur Mohammad (“Defendant”) as Doe 2.

On December 5, 2023, Plaintiff filed a proof of service of the complaint on Defendant. The proof of service shows that the summons and complaint were served at 7018 Elmsbury Lane, West Hills via substitute service on September 13, 2023 to Irina Chemeleva. Copies of the summons and complaint were also mailed to the address on September 18, 2023.

On December 5, 2023, default was entered against Defendant.

On June 13, 2024, Defendant filed the instant motion to set aside the default based on Code of Civil Procedure section 473.5. Plaintiff opposes. No reply has been filed.

LEGAL STANDARD

Section 473.5

Under Code of Civil Procedure section 473.5, “[w]hen 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.” ¿This motion must be brought “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.” (Code Civ. Proc. § 473.5(a).)  

¿¿¿ 

The focus of section 473.5 is whether the defaulting party obtained actual notice in time to defend the action.¿“Discretionary relief based upon a lack of actual notice under section 473.5 empowers a court to grant relief from a default judgment where a valid service of summons has not resulted in actual notice to a party in time to defend the action.”¿ (Anastos v. Lee (2004) 118 Cal.App.4th 1314, 1319.)¿“A party seeking relief under section 473.5 must provide an affidavit showing under oath that his or her lack of actual notice in time to defend was not caused by inexcusable neglect or avoidance of service.”¿(Ibid.; Code Civ. Proc. § 473.5(b).)¿The term “actual notice” means “genuine knowledge of the party litigant.”¿(Rosenthal v. Garner (1983) 142 Cal.App.3d 891, 895.)¿ “The party seeking relief must serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action. (Code Civ. Proc. § 473.5(b).)

EVIDENTIARY OBJECTIONS

The Court overrules Plaintiff’s objection number 1 and declines to rule on objection 2 as it has no effect on the ruling herein.

DISCUSSION

As an initial matter, the record does not show that Plaintiff served written notice of the entry of default on Defendant. Though the opposition argues that Plaintiff sent Defendant notice of the Request for Default on November 29, 2024 and December 5, 2024, she does not show that she served notice that the default was entered. Therefore, the deadline for bringing this motion under section 473.5 is two years after the default was entered: December 5, 2025. Since Defendant filed this motion on June 13, 2024, it is timely.

Secondly, to the extent Defendant argues that Plaintiff did not use reasonable diligence to attempt personal service, the Court notes that Defendant provides authority that two or three attempts are sufficient. (Motion, 8.) Here, the proof of service shows that the process server made three attempts on consecutive days and at different times of the day before substitute service was made. Therefore, substitute service was sufficient. 

Turning to the main issue of actual notice, Defendant offers the declaration of Irina Shmeleva, his wife, who received the papers during the substitute service. She declares, under penalty of perjury, that from August 9, 2022 to May 8, 2023, Defendant was incarcerated for financial crimes. (Shmeleva Decl. ¶ 3.) She states that she became angry with him for the crimes and resulting financial hardship on their family. When he returned home, she would not speak to Defendant and did not see him even though they were living in the same house. She declares the following: “I was handed legal papers for my husband on September 13, 2023 was still so upset at my husband that I put the papers somewhere and promptly forgot about them. I did not inform my husband that I received documents for him. One of our daughters resides with us and she was the person in our family that picked up the mail. She never told me that any mail arrived for my husband.” (Id. ¶ 5-6.)

Defendant’s declaration also confirms that his relationship with his wife was fractured following his release from prison. (Mohammad Decl. ¶ 3.) He further declares:

“In April 2024 I received a copy of a document from plaintiff's attorney applying for a default judgment against me. I was shocked and asked my wife if she knew anything about it and at first she said she knew nothing about it. A little later, she brought me the documents and told me that she was sorry but that she put them down and then forgot about them since we were still having relationship problems at that time. I knew nothing about the attempts at service since I was not home when the attempts were made and my wife did not tell me that someone was looking for me. I immediately contacted my insurance carrier but learned that the claim was denied as it was not presented during the period of time that I was insured.”

(Mohammad Decl. ¶¶ 4-6.)

In opposition, Plaintiff argues that Defendant has not set forth enough evidence showing he lacked actual notice of the lawsuit. However, based on the declarations, Defendant has shown that his lack of actual notice was not caused by inexcusable neglect or avoidance of service. Plaintiff provides no evidence to the contrary. As a result, the motion to set aside the default under section 473.5 is granted.[1]

CONCLUSION AND ORDER

Therefore, the Court GRANTS Defendant’s Motion to Set Aside the Default entered on December 5, 2023.

Defendant shall file and serve his proposed answer within 10 days.

The matter is set for a Final Status Conference on March 3, 2025 in Department 32 of the Spring Street Courthouse.

Trial is set for March 17, 2025 at 8:30 a.m. in Department 32 of the Spring Street Courthouse.

Defendant to provide notice and file a proof of service of such.