Judge: Armen Tamzarian, Case: 23STCV31474, Date: 2024-06-07 Tentative Ruling

Case Number: 23STCV31474    Hearing Date: June 7, 2024    Dept: 52

Defendant Abel Rivera’s Motion to Set Aside the Judgment and Any Default and to Quash Any Writ of Possession/Execution

Defendant Abel Rivera moves to set aside his default and the default judgment against him under Code of Civil Procedure section 473.5.  Courts may vacate a defendant’s default and default judgment “[w]hen service of a summons has not resulted in actual notice to a party in time to defend the action.”  (Id., subd. (a).)  A motion for that relief “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.”  (Id., subd. (b).)

Defendant meets that burden.  “ ‘[W]ith respect to setting aside a default judgment, it is the policy of the law to favor, whenever possible, a hearing on the merits.’ ”  (Luxury Asset Lending, LLC v. Philadelphia Television Network, Inc. (2020) 56 Cal.App.5th 894, 907; accord Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [CCP § 473(b)].)  Defendant submitted a declaration stating, “I did not answer the Summons and Complaint and did not go to the trial because I did not receive the Summons and Complaint in this case at all or did not receive them in the legally required way calculated to provide notice.  I received them after receiving the Notice to Vacate and being instructed by my Attorney to go get the case files as they are inaccessible prior to subbing in.”  (Rivera Decl., ¶ 2.)  He further states, “I didn’t receive the Summons/Complaint until after I received the Notice to Vacate.”  (Id., ¶ 3.)  “I did not avoid service of the legal papers or do anything else that interfered with notice of the Summons and Complaint that was meant for me.”  (Id., ¶ 4.)  Finally, he states, “I discovered there was a default/judgment against me on April 26, 2024.”  (Id., ¶ 5.)

In light of the policy favoring trial on the merits, defendant presents sufficient evidence showing he lacked actual notice in time to defend the action and his lack of actual notice did not result from avoiding service or inexcusable neglect.

Plaintiff Hollywood Arts, LLC argues, “Given that the proofs of service attest to Defendant receiving actual notice in time to defend the action and file an answer or other responsive pleading, Defendant’s argument under Code of Civil Procedure section 473.5 that he did not have actual notice in time to defend the action is disproved.”  (Opp., p. 5.)  The proofs of service do not attest to defendant receiving actual notice.  They state the process server posted the summons and complaint at the subject commercial property and thereafter mailed them to the same address.  Properly serving the papers under Code of Civil Procedure section 415.45 does not mean defendant actually got them.  Defendant testifies that he never received them until after default judgment was entered against him.  That evidence suffices for relief under Code of Civil Procedure section 473.5.     

Disposition 

Defendant Abel Rivera’s motion to set aside default and default judgment is granted.  The court hereby vacates the default and default judgment for possession of the premises entered against defendant Abel Rivera.  The court hereby quashes the writ of possession issued by the clerk.  Defendant shall file his proposed answer (attached to the motion as exhibit 9) forthwith.