Judge: Colin Leis, Case: 20STCV08599, Date: 2023-02-09 Tentative Ruling

Case Number: 20STCV08599    Hearing Date: February 9, 2023    Dept: 74

Superior Court of California

County of Los Angeles – CENTRAL District

Department 74

MOVING PARTIES:             Defendant Marcelle Danan (“Defendant”)

RESPONDING PARTY:        Plaintiff  David Syner (“Plaintiff”)

Motion to Set Aside/Vacate Default

The court considered the moving papers, opposition, and reply papers filed in connection with this motion.

BACKGROUND

            Plaintiff filed this action on March 2, 2020 alleging that Defendant misled Plaintiff when Plaintiff leased Defendant’s property at 2604 Devista Pl., Los Angeles, CA 90046.  On September 10, 2020, the court granted Plaintiff’s application to serve Defendant by publication in the Los Angeles Daily Journal. On October 13, 2020, Plaintiff submitted a proof of publication on the following dates: 09/17/20, 09/24/20, 10/01/20, 10/08/20. Default was entered on November 17, 2020. On January 25, 2021, the Court entered judgment against Defendant in the amount of $98,471.29.

            On April 25, 2022, Defendant filed a motion to set aside/vacate the default pursuant to Code of Civil Procedure section 473.5.

REQUEST FOR JUDICAL NOTICE

            Defendant requests that the court take judicial notice of the following documents filed in this case: (1) Application for Publication and (2) Declaration of David Syner in Support of Request for Default Judgment. The Court grants this request pursuant to Evid. Code 452 and 453.

EVIDENTIARY OBJECTIONS

            Defendant’s evidentiary objections to Plaintiff David Syner’s declaration are overruled, except Objection No. 5, which is sustained.

LEGAL STANDARD

Courts may set aside a default or default judgment due to lack of actual notice. Code of Civil Procedure section 473.5 states:  

“(a) 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. 

(b) 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. 

(c) 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.”  

DISCUSSION

            Defendant argues that the default judgment should be set aside pursuant to Code of Civil Procedure section 473.5. Defendant puts forward a declaration that states that Defendant did not have actual notice of this case. Defendant states that, since February 2018, she has resided continuously in either Myanmar, Paris, or Morocco and has only returned to the United States for medical reasons. (Danan Decl. ¶ 5.) Defendant also states that, as she gave Plaintiff the keys for the property, she advised Plaintiff that she would be leaving the country to work for an indefinite period of time in Myanmar. (Danan ¶ 6.) Defendant states that, prior to filing the lawsuit, Plaintiff had her current cell phone number and email address and had communicated with her via both of these contacts about problems with the property. (Danan Decl. ¶ 7.)

            Defendant states she was never personally served with the summons or complaint in this case and that she never saw the publication. (Danan Decl. ¶¶8-9.) Defendant states she did not have actual notice of the case until a year after the default judgment was entered, and did not attempt to avoid service. (Danan Decl. ¶ 10.) Defendant states that she first learned that the case existed in December 24, 2021, when her son learned that Plaintiff recorded a lien on the property. (Danan Decl. ¶ 12.)

            In opposition, Plaintiff argues that the court should not set aside the judgment because Defendant’s claim of no actual notice is not credible. Plaintiff argues that service was attempted four times at her residence. Additionally, Plaintiff argues that Defendant made several trips back to Los Angeles during 2018-2020. Defendant also attempts to argue that it “strains credulity and logic to believe…that she never collected and/or opened her mail at the Residence during her trips to Los Angeles in 2020.” Additionally, Plaintiff argues that Defendant should have had actual notice because Plaintiff emailed Defendant’s attorney, David Erikson, asking whether he would accept service on Defendant’s behalf, and Mr. Erikson stated he would “email” Defendant. Plaintiff argues that it is reasonable to believe that Plaintiff had actual notice based on these inferences.

            Disregarding the fact that most of the argument put forth by Plaintiff is in the form of hearsay and inadmissible inferential evidence, the court finds that Defendant’s declaration is sufficient to grant relief under section 473.5. Section 473 is liberally applied, and “actual notice” is strictly construed to promote resolving cases on their merits. Defendant’s motion includes a declaration, under penalty of perjury, that Defendant was never personally served, had no knowledge of the service by publication, and that her lack of actual notice was not caused by her avoidance or neglect. Her declaration indicates that she only gained actual notice about a year after default judgment was entered. Additionally, Defendant states that Mr. Erikson had represented her in an unrelated transaction and was not her counsel of record in this case and was not authorized to accept service on her behalf. (Danan Decl. ¶ 12-13.) This declaration is a sufficient showing that Defendant did not have sufficient actual notice pursuant to section 473.5.

            Plaintiff also argues that Defendant’s motion is untimely because Defendant waited four months to file this motion after she discovered the existence of the judgment. Plaintiff’s motion is timely. Section 473.5 requires a motion to be brought within a reasonable time but no later than the earlier of two years after the entry of judgment or 180 days after written notice of entry of judgment is served. Plaintiff’s motion is timely and made within a reasonable time of her having notice of this lawsuit.

            Additionally, Plaintiff argues that the motion should be denied because Defendant failed to file a proposed answer. Under the circumstances, the argument fails. Defendant’s moving papers included her declaration, which identified as Exhibit A to Defendant’s declaration her proposed answer. (Decl. ¶ 15.) But as Defendant’s reply acknowledged, she did not in fact, however, attach the answer to her declaration, an oversight on her part. Defendant corrected the oversight by attaching her proposed answer to her reply. (Bubman Decl. ¶ 3, Ex. 1.) 

CONCLUSION

Based on the foregoing, the court grants Defendant’s motion for relief from default judgment.

The court orders that the default judgment entered against Defendant Marcelle Danan be vacated.

The court orders that the answer filed on behalf of Defendant is deemed filed as of February 9, 2023.  

Defendant is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED:  February 9, 2023

_____________________________

Colin Leis

Judge of the Superior Court