Judge: Anne Richardson, Case: 23STCV00862, Date: 2023-10-17 Tentative Ruling

Case Number: 23STCV00862    Hearing Date: October 17, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

On January 13, 2023, Plaintiff Scorpion Real Estate Investment Inc. (Scorpion) initiated this unlawful detainer action against Defendant George Gabriel pursuant to a Complaint seeking possession of the premises (8581 Cole Crest Dr., Los Angeles, California 90046), costs incurred, past due rent of $33,000, forfeiture of the rental agreement, and damages at a rate of $366.66 per day starting from February 1, 2023.

On February 6, 2023, Scorpion filed a proof of service showing that a registered process server personally served Defendant Gabriel with the summons, complaint, and other papers on January 20, 2023. However, the proof of service failed to specify the time of service.

That same day, Scorpion requested an entry of default against Defendant Gabriel.

On February 8, 2023, the Clerk rejected the request for entry of default for, in part, failing to specify the time of service.

On February 14, 2023, Scorpion filed an amended proof of service showing that a registered process server personally served Defendant Gabriel with the summons, complaint, and other papers at 9:25 AM on January 20, 2023.

That same day, Scorpion requested an entry of default and default judgment against Defendant Gabriel.

The Clerk entered the entry of default on February 14, 2023 and granted default judgment on February 16, 2023. Judgment was limited to possession of the premises and cancellation of the rental agreement. No monetary recovery was sought or entered.

On February 17, 2023, Scorpion filed for a writ of possession of real property.

On February 21, 2023, the Clerk executed the writ.

On May 22, 2023, Defendant Gabriel moved to set aside the default and default judgment on the grounds that he was never personally served with the documents in this action, but rather, that the process server instead left the service papers stuck through the gate in front of the premises at a time when Defendant Gabriel was not home. Defendant Gabriel provides his declaration and a picture of the papers stuck through the gate in support. Defendant Gabriel specifies that he was not aware that default judgment had been entered against him until March 28, 2023, when the Sheriff came to evict him and his wife from the premises. (It is unclear whether the eviction actually occurred.) Defendant Gabriel also declares that he reached out to the real owner of the property—Brian R. Dozier—to ask what was going on, only to be informed by Mr. Dozier that Dozier did not initiate this action and that the lawsuit was instead a fraud and retribution against Dozier by a former business associate, Shaoul Amar. Defendant Gabriel thus represents that Scorpion does not own the subject premises.

Scorpion has failed to oppose this motion despite the motion being served on Scorpion’s counsel per a facially valid proof of service filed May 23, 2023.

Defendant Gabriel’s motion is now before the Court.

Motion to Set Aside Default and Default Judgment

Legal Standard

The defendant can directly attack the entry of default or default judgment by filing a motion to vacate a void judgment. (Code Civ. Proc., § 473, subd. (d); see e.g., Falahati v. Shinji Kondo (2005) 127 Cal.App.4th 823, 829-30.) It is unclear whether relief under this statutory subdivision is mandatory or discretionary. (Compare Code Civ. Proc., § 473, subd. (d) [court “may” set aside void judgment, connoting discretionary relief] with Airs Aromatics, LLC v. CBL Data Recovery Techs. (2018) 23 Cal.App.5th 1013, 1023 [finding that it would be illogical for a court to lack fundamental jurisdiction to enter default judgment in violation of Code of Civil Procedure section 580 but nevertheless retain discretion to not set that judgment aside, connoting mandatory relief].)

A default or default judgment is void if the defendant was not served or was improperly served. (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 387; Dill v. Berquist Const. Co. (1994) 24 Cal.App.4th 1426, 1444.) Generally, a defendant is considered properly served if the defendant had actual notice of the suit and the plaintiff substantially complied with the statutory requirements for service. (See Pasadena Medi-Ctr. Assoc. v. Superior Court (1973) 9 Cal.3d 773, 778; cf. Summers v. McClanahan (2006) 140 Cal.App.4th 403, 410-11 [actual notice is not enough to establish proper service if the plaintiff completely failed to comply with statutory requirements]; Bishop v. Silva (1991) 234 Cal.App.3d 1317, 1323 [declining to liberally construe statutory requirement of timely service even though the defendant had actual notice].)

Order Setting Aside Default and Default Judgment: GRANTED.

Here, the Court is satisfied that, in serving Defendant Gabriel, the registered process server did not comply with the statutory requirements for service. (Code Civ. Proc., § 415.10.)

The amended proof of service filed with the Court on February 14, 2023 indicates that the registered process server served the summons and Complaint on Defendant Gabriel in person, at the premises, at 9:25 AM on January 20, 2023. (See 2/14/23 POS, § 5.) Yet, Defendant Gabriel explains that, at that time, he was not home because he had arrived at work by 7:45 AM and did not leave until 2:45 PM. (Mot., Gabriel Decl., ¶ 6.) To show that he was not home at 9:25 AM, Defendant Gabriel provides, among other things, an image of the documents with which he was allegedly served, stuck through the gate to enter the premises, and transaction details for a coffee purchase. (Mot., Gabriel Decl., Ex. 4.) Such circumstances appear to imply that the default and default judgment secured in this case were secured through a misrepresentation as to personal service on Defendant Gabriel. This position is unopposed by Scorpion, whose counsel was served with the motion, thus lending merit to Defendant Gabriel’s position. (Compare Mot., POS, with 2/16/23 Judgment [showing the same address for Plaintiff’s counsel in San Bernardino, California]; see Cal. Rules of Court, rule 3.1342 [“The failure of the opposing party to serve and file a written opposition may be construed by the court as an admission that the motion is meritorious, and the court may grant the motion without a hearing on the merits”].) Moreover, while there exists a rebuttable presumption of service where service is effected through a registered process server (Evid. Code, § 647), that presumption can be overcome by credible evidence. (Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1481.) The Court finds Defendant Gabriel and his explanation as to defective service credible.

Accordingly, the Court GRANTS Defendant Gabriel’s motion. 

Conclusion

Defendant George Gabriel’s Motion to Set Aside the Judgment and Any Default [CCP §§ 473(b); 473.5; and 473(d)] is GRANTED.

The February 14, 2023 entry of default and February 16, 2023 judgment against Plaintiff George Gabriel are SET ASIDE and VACATED.

Defendant George Gabriel is ORDERED to file his Answer (attached as Exhibit 6 to his motion) with the Court and serve the Answer on all parties within 10 court days of this ruling.

The Court will set a Case Management Conference.