Judge: Christian R. Gullon, Case: 23PSCV01550, Date: 2023-09-28 Tentative Ruling

Case Number: 23PSCV01550    Hearing Date: September 28, 2023    Dept: O

Tentative Ruling

MOTION TO SET ASIDE DEFAULT JUDGMENT AND TO QUASH ANY WRIT OF POSSESSION/EXECUTION [CCP §§ 473(b), 16 473(d), 473.5, and 128(a)(8)] is DENIED.

Background

This is an unlawful detainer (UD) action.

On May 8, 2023, a Notice to Pay Rent or Quit was served via “Posting and Mailing”. [1]

On May 22, 2023, Plaintiff Lyfestyle Properties, LLC filed the instant UD action against Defendants Maria and Ana Pompa (collectively, “Defendants”) alleging a total delinquent rent of $36,000.[2]

On May 24, 2023, a Notice of Unlawful Detainer (Eviction) form was filed as to all Defendants (Maria Pompa, Ana Pompa, and All Occupants).[3]

On June 8, 2023, the court granted Plaintiff’s Application and Order to Serve Summons by Posting. According to the Declaration of Diligence attached thereto (See pp. 3-4 of 4 of PDF), service was attempted by a California registered process server, at the following times and dates upon Defendants:[4]

1) Attempt: May 31, 2023, 7:37 am PDT at HOME: 24 Spyglass Avenue, Pomona, CA 91766 No answer. Quiet.

2) Attempt: Jun 1, 2023, 4:47 pm PDT at HOME: 24 Spyglass Avenue, Pomona, CA 91766 No answer. Quiet.

3) Attempt: Jun 2, 2023, 8:01 pm PDT at HOME: 24 Spyglass Avenue, Pomona, CA 91766 No answer. Dark inside.

4) Attempt: Jun 3, 2023, 10:30 am PDT at HOME: 24 Spyglass Avenue, Pomona, CA 91766 No answer. Quiet.

5) Attempt: Jun 4, 2023, 6:59 am PDT at HOME: 24 Spyglass Avenue, Pomona, CA 91766 No answer. Quiet.

On June 14, 2023 at 6:19 PM, Defendants, via a registered process server, were served with the Summons-Eviction; Complaint - Unlawful Detainer; Civil Case Cover Sheet; Plaintiff's Mandatory Cover Sheet And Supplemental Allegations-Unlawful Detainer via posting and certified mail.[5]

On July 10, 2023, default and default judgment were entered against Defendants (for possession only).

On August 18, 2023, Defendants filed a Notice of Limited Scope Representation (Counsel Brian McCoy stating he would investigate the facts and evaluate further representation).

On August 25, 2023, Defendant(s) filed a Request for Copies (of the entire case file).

On September 1, 2023, Defendants filed an ‘Ex-Parte Application for Stay of Execution of Default Judgment and Order Shortening Time for Service of a Motion to Set Aside Default Judgment,’ which the court denied on 9/08/23. That same day, Defendants filed a Notice of Limited Scope Representation wherein Daniel Choi indicated he would represent Defendant (Maria Pompa) at the ex parte application hearing on 9/1/23 and at the hearing on Defendants’ motion to set aside default judgment. That same, Defendants filed the instant motion.

On September 7, 2023, Plaintiff filed its opposition to both the ex-parte application and the motion to set aside the default judgment.

To date, as of 9/27/2023 at 9 AM, no Reply has been received (due 5 court days before hearing).

Legal Standard

Defendants bring forth the motion pursuant to CCP sections 473(b) (mistake, inadvertence, surprise, or excusable neglect), 473(d) (improper service), 473.5 (standard for motions to set aside default judgment), and 128(a)(8) (court’s powers in conducting proceedings).[6]

CCP section 473 subdivision (b) allows a court to vacate a prior order upon a showing that the order was entered due to a party’s mistake, inadvertence, surprise, or excusable neglect. Additionally, the motion “shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc.,¿§ 473, subd. (b).)

Section 473(d) provides that “[t]he court may . . . on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc., § 473(d).) A default judgment is void against a defendant who was not served with a summons in the manner prescribed by statute. (See Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 858). Relief pursuant to section 473(d) may be made at any time. (See Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42).

Section 473.5 provides the procedure when a defendant claims she has not received actual notice of the summons, resulting in a default and/or default judgment. The motion “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.” (Civ. Proc., section 473.5(b).) Pursuant to section (c) of the statute, when a court determines that a defendant “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.”

Lastly, CCP section 128, provides that a court shall have the power “[t]o amend and control its process and orders so as to make them

conform to law and justice.”

Discussion

The crux of Defendants’ motion is that they did not receive actual notice of the summons and complaint. Defendants learned of the action on August 11, 2023 after the property manager was “unresponsive” so one of the household members went to the courthouse to check to see if a UD action was filed against them. (Motion p. 13:18-24; see also Maria Decl., ¶5.)

In Opposition, Plaintiff advances the following rebuttals: (i) Plaintiff is entitled to a presumption of proper service, and it is Defendants’ burden to overcome the presumption with specific facts and credible evidence; (ii) not all Defendants have filed declarations (Ana Pompa has not filed a declaration); (iii) the declarations are vague; and (iv) Defendants should have known about this case because they have not paid rent. In sum, the crux of Plaintiff’s argument is that the fact that one of the Defendants concludes that she was not served, without more evidence supporting the claim, is insufficient. (Opp. p. 5.)

Here, the court finds that Defendants have not offered sufficient explanations and evidence to overcome the rebuttable presumption for a few reasons.[7]  

First, as to Defendants’ explanation of how they learned of the lawsuit, it is questionable. The motion only states that Maria “had a nervous feeling because [the property manager] was being unresponsive.” (Motion p. 13:18-19.) But that statement tacitly suggests that Defendants knew something about this case before going to court and asking for the files. In fact, Defendants would have received other notifications about the pendency of this action (e.g., notice of unlawful detainer case filing, and the request for default and default judgment), but the motion nor declarations do not speak to those other filings, suggesting those documents were perhaps received. Thus, as the motion and declarations appear to undermine that the basis for the motion—that they only learned of the action based on a hunch—that argument is insufficient to overcome Defendants’ evidentiary burden.

Second, despite Defendants’ contention that they were not evading service, the POS suggests otherwise. There were five attempts at personal service, attempted at various hours in the day (morning and evening), but that there was no answer/the home was quiet. Defendants have not explained (i) where they were (home or not) or (ii) if they work and what times and where which would be evidence to support Defendants’ contention that they were truly ignorant of the action, which is the very basis of the motion.

Third, to the extent that Defendants explain that the household has experienced recurring instances of opened mail and missing delivered packages suggesting that the complaint and summons could have been stolen, that is unpersuasive for a few reasons. First, the declarations only speak to stolen packages not stolen mail (or stolen posting(s) on the door). Second, on this note, the declaration states that mail is opened, not that mail is stolen. Third, the declaration states that the issue of certain opened mail has been a problem in “the past” and specifically within the past “two months.” (Motion p. 32 of 35 of PDF.) But the summons and complaint were mailed on June 14, 2023, which is more than two months from the filing of the declaration (8/31/2023). Thus, as the declarations are unclear as whether mail is indeed stolen and when this issue began/is reoccurring, this evidence is also insufficient to overcome Defendants’ burden.  

All in all, though mindful of the public policy strongly favors granting relief, the evidence, and arguments, when read in their totality, draw into question the credibility and veracity of Defendants, indicating that Defendants knew of the lawsuit but turned a blind eye to the case. (See Hodge Sheet Metal Products v. Palm Springs Riviera Hotel (1961) 189 Cal.App.2d 653, 658 [“The weighing of the veracity of the affidavit was in the province of the trial court.”].)

Conclusion

Based on the foregoing, the motion is DENIED.