Judge: Anne Richardson, Case: 23STCV07247, Date: 2024-07-11 Tentative Ruling

Case Number: 23STCV07247    Hearing Date: July 11, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

On May 16, 2023, Plaintiff SURENDRA BHAVNANI DBA LAXMI IMPEX (“Plaintiff”) filed the operative First Amended Complaint (“FAC”) against Defendants GREENLEAF DIAMONDS, LLC (“GDL”), ANDRE SENGUL DBA GREELEAF DIAMONDS (“Sengul”), and DOES 1 through 20 (collectively, “Defendants”). The FAC asserts the following causes of action against all Defendants:

1. Breach of Contract

2. Book Account

3. Goods Sold and Delivered

On June 28, 2023, default was entered against Defendant Sengul. Subsequently, default judgment was entered against Defendant Sengul in the amount of $101,364.86 on October 20, 2023.

Defendant Sengul now brings a Motion to Set Aside/Vacate Default and Default Judgment, which Plaintiff has not opposed.  A proof of service is attached to the motion showing service on Plaintiff’s counsel at the address on the Judgment entered 10/20/23.

After review, the Court GRANTS the Motion because Defendant Sengul has shown he did not have actual notice of the action in time to defend on the merits.

Background Allegations

This action involves seven written contractual agreements between Plaintiff and Defendant Sengul for the sale of certain diamonds to Defendants in the amounts of $394.00, $30,294.00, $5,680.00, $17,769.00, $14,650.00, $3,300.00, and $285.00. (Compl., ¶9, Ex. 1.) Each agreement was to be paid in full within 120 days from the date of each memorandum. (Id.) Defendant Sengul failed to make any payments on the seven agreements resulting in a balance owed of $72,372.00. (Id. at ¶10.) Plaintiff made a demand for payment on the balance due and Defendant Sengul has refused to pay it. (Id. at ¶11.)

Motion to Set Aside/Vacate Default and Default Judgment

Legal Standard: “When 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. The notice of motion shall be served and filed 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).)¿¿ 

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“A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall 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).) 

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“Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.” (Code Civ. Proc., § 473.5(c).) 

Here, Defendant Sengul contends he has been living in Maui, Hawaii for the past ten years and working at his business Greenleaf Diamonds in Maui at the time the purported service of process was rendered. (Sengul Decl., ¶¶2-3, 7, Exs. 1-2.) Defendant Sengul further contends that the 4220 Mesa Drive, La Canada, Flintridge, CA property where the purported service of process was effectuated is his investment Airbnb property that was being rented out by third-party guests during the time service was rendered. (Id. at ¶¶4-5, Exs. 3-4.) Moreover, Defendant Sengul asserts he became aware of this pending case in early March of this year, when he received a notice letter from his California bank that a deposition subpoena for his bank records had been issued by Plaintiff’s counsel Timothy Krantz. (Id. at ¶¶6, 13.) Defendant Sengul has provided photographic evidence that he was not physically present in California when the alleged personal service was effectuated. Defendant Sengul has also produced evidence that the property where service was effectuated was occupied by Airbnb guests at the time when service was rendered.  Additionally, Defendant Sengul has submitted a proposed Answer with the instant motion. Lastly, Plaintiff has not opposed the present motion as to contest the arguments and evidence raised therein.

Therefore, Defendant Sengul presents sufficient grounds for discretionary relief under Code of Civil Procedure Section 473.5.

Conclusion 

Based on the foregoing, Defendant Andre Sengul dba Greenleaf Diamonds, LLC’s Motion to Set Aside/Vacate Default and Default Judgment is GRANTED. Defendant Sengul is ordered to file his Answer within 20 days of this order.