Judge: Daniel S. Murphy, Case: 22STCV40037, Date: 2023-04-26 Tentative Ruling

Case Number: 22STCV40037    Hearing Date: April 26, 2023    Dept: 32

BACKGROUND

            On December 23, 2022, Plaintiff 5th Street Loft LLC initiated this unlawful detainer action against Defendant Sonia Kish. Default judgment was entered by clerk on January 27, 2023. On March 8, 2023, Defendant filed the instant motion to set aside the default, claiming that she was not notified about the hearing.

LEGAL STANDARD

“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473(b).)

DISCUSSION

            If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to a defendant, substitute service may be performed by leaving the documents at the defendant’s household with a competent member who is informed of their contents, and thereafter mailing a copy to the same address. (Code Civ. Proc., 415.20(b).)

Plaintiff has filed a proof of substitute service from a registered process server demonstrating that the summons and complaint were left with a member of Defendant’s household, Kory Zazch. The documents were subsequently mailed to the same address. Service by a registered process server results in a rebuttable presumption of valid service. (Evid. Code, § 647.)

Defendant avers: “I did not appear in court as I was not served the eviction and was unaware of the hearing. There was a Writ of Possession of Real Property posted on my door on Friday, March 3, 2023. (Kish Decl. ¶ 3.) This is insufficient to rebut the presumption of valid service. Defendant does not dispute being served with the summons and complaint and does not dispute that Kory Zazch received service at her household.

The Court finds that Defendant was properly served with the lawsuit, and Defendant offers no basis for relief due to mistake or excusable neglect.

CONCLUSION

            Defendant’s motion to set aside default is DENIED.