Judge Bruce G. Iwasaki, Case Number: 23STCV12653, Date: 2024-01-11 Tentative Ruling

This action arises from a breach of commercial lease. Plaintiff Maple DTLA, LLC (Plaintiff) sued Defendant Shohel Rana Chuwdry (Defendant) asserting a single cause of action for a breach of contract. Plaintiff alleges Defendant now owes $98,750.

Thereafter, Plaintiff moved for entry of default judgment. Following multiple attempts, the Court entered default judgment on February 7, 2024.

On February 16, 2024, Defendant Chuwdry moved to set aside the entry of default judgment pursuant to Code of Civil Procedure section 473, subdivisions (b), (d), and Section 473.5.[1] Plaintiff opposed the motion. No reply was filed.

The motion to set aside and vacate the entry of default and default judgment is denied.

Plaintiff’s objections to Defendant’s declaration are ruled as follows: Nos. 1-9, 12, 14, 16-19 are overruled, and Nos. 10-11, 13, 15 are sustained. Plaintiff’s objections to Garcia’s declaration are ruled as follows: Nos. 1-6 are overruled.

Code of Civil Procedure section 473, subdivision (b) provides for either discretionary or mandatory relief from certain prior actions or proceedings in the trial court. (Luri¿v. Greenwald¿(2003) 107 Cal.App.4th 1119, 1124.)¿¿

“ ‘Under the discretionary relief provision, on a showing of “mistake, inadvertence, surprise, or excusable neglect,”¿the court has discretion to allow relief from a “judgment, dismissal, order, or other proceeding taken against”¿a party or his or her attorney.¿¿Under the mandatory relief provision, on the other hand, upon a showing by attorney declaration of “mistake, inadvertence, surprise, or neglect,”¿the court shall vacate any “resulting default judgment or dismissal entered.” ’ [Citation.] Applications seeking relief under the mandatory provision of section 473 must be ‘accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.’ The mandatory provision¿further adds that ‘whenever relief¿is granted based on an attorney’s affidavit of fault [the court shall] direct the attorney to pay reasonable compensatory legal fees and costs¿to opposing counsel or parties.’¿” (Ibid.; Code Civ. Proc., § 473, subd. (b).)¿¿

Defendant argues the entry of default and default judgment must be set aside because service of the summons did not result in actual notice to Defendant in time to defend the action.

That is, Defendant argues he was never properly served with the complaint and summons in this case.

Section 473.5, subdivision (a), provides: “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 section 473.5 motion must “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).) The moving party bears the “burden of showing that [its] lack of actual notice was not caused by ... avoidance of service or inexcusable neglect.” (Rios v. Singh (2021) 65 Cal.App.5th 871, 885.)

The evidence is that on July 17, 2023, Plaintiff, through a registered process server, sub-served Defendant by leaving a copy of the Complaint with “Priya Silva” at Defendant’s place of business. (Shakouri Decl., ¶ 4, Ex, C.) The registered process server substitute served the Summons and Complaint at 1333 Maple Ave, Los Angeles, California 90015 on Priya Silva; Age: 30s; Ethnicity: Unknown; Gender: Female; Weight: 140; Height: 5’6”; Hair: Brown; Relationship: Wife, who answered the door, and identified herself as Defendant’s wife. (See Shakouri Decl., ¶¶ 5-6, Ex. B.) On July 18, 2023, Plaintiff’s registered process server then mailed a copy of the same, addressed to Defendant, at 1333 Maple Ave, Los Angeles, California, 90015. (See Shakouri Decl., ¶¶ 5-6, Ex. B.)

In moving for relief, Defendant represents he was not in the country at the time of service. He states that, after his father and brother died, he repeatedly traveled back and forth from Bangladesh during the months of June and July in 2023. (Chuwdry Decl., ¶ 5.) Defendant submits an Expedia travel receipt showing a flight in Defendant’s name leaving on July 9, 2023. (Chuwdry Decl., Ex. A.) Defendant represents that he informed Plaintiff that he would be out of the country during the time service was purportedly effectuated. (Chuwdry Decl., ¶ 6.)

Defendant also submits the declaration of Norma Silva Garcia who states that she was not at Defendant’s place of business on July 17, 2023; she also contends that the process server’s description of the person served does not match her own description as she is in her 30s, is “very short” and her name is not Priya Silva. (Garcia Decl., ¶ 4.)

First, with respect to the process server’s use of the name “Priya,” Plaintiff submits evidence in opposition showing that Defendant’s wife had previously identified herself by the name “Priya.” (Kachroo Decl., ¶ 4, Ex. A [text messages].)

Further, Plaintiff notes that what is conspicuously absent from Defendant’s evidence is any assertion as to who was actually served on July 17, 2023, and why no one informed Defendant that a process server had come to the business premises.

Additionally, Defendant states that he first learned about this lawsuit in December 2023, months after default was entered against him on August 29, 2023. (Chuwdry Decl., ¶ 8.) However, Defendant provides no details of how he learned of the default.[3]

Because of the discrepancies and omissions, Defendant fails to carry his burden of demonstrating a lack of actual notice or that his lack of action was not due to avoidance of service or inexcusable neglect. Rather, Defendant’s declaration appears to be deliberately conclusory and vague. The case law is clear that “conclusory” declarations without supporting facts cannot support relief. (See Rios, supra, 65 Cal.App.5th at pp. 885-886 [affirming denial of § 473.5 motion where movant's “conclusory declaration does not satisfy his burden” without stating “any supporting facts”]; Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 861-862 [affirming denial of § 473.5 motion where affidavit did not “show that any lack of knowledge was caused by excusable neglect”]; Anastos v. Lee (2004) 118 Cal.App.4th 1314, 1319 [“declaration of counsel failed to show that any inferred lack of notice was not caused by defendants’ avoidance or inexcusable neglect.... Absent a proper affidavit or declaration that the defendants’ lack of actual notice was not caused by inexcusable neglect or avoidance of service, the trial court properly denied the defendants’ motion”].)

Lastly, to the extent that Defendant also relies on Code of Civil Procedure section 473, subdivision (b) for relief – Defendant’s evidence is also insufficient to show “mistake, inadvertence, surprise, or excusable neglect” for the same reasons.

[1] As early as January 11, 2024, when the Court first denied Plaintiff’s request for entry of default judgment, the Court noted that a motion to set aside had been reserved but no motion had yet been filed.

[2] As preliminary matter, Plaintiff argues that Defendant’s motion is procedurally defective because it fails attach the proposed answer or other pleading with the Motion. (Code Civ. Proc., § 473, subd. (b) [An application for relief “shall be accompanied by a copy of the answer or other pleading proposed to be filed … otherwise the application shall not be granted.”].) This argument fails because the proposed Answer is attached as Exhibit B to the Chuwdry’s declaration.

[3] Defendant further states that “Any delay in filing this motion earlier than today was because in December and January I was suffering from extreme back pain (requiring and ER visit) as well a very serious case of the flu and was therefore unable to provide my counsel all the information they needed to be able to finalize and file this motion.” (Chuwdry Decl., ¶ 8.) Defendant’s vague declaration as to his medical condition is irrelevant to disproving substitute service.