Judge: David B. Gelfound, Case: 23CHCV01908, Date: 2024-07-08 Tentative Ruling

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Case Number: 23CHCV01908    Hearing Date: July 8, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F-49

MOTION TO SET ASIDE JUDGMENT AND QUASH ANY WRIT OF POSSESSION/EXECUTION

Motion filed: 4/29/24

MOVING PARTY: Defendant Ciristen Joseph (“Joseph” or “Defendant”)

RESPONDING PARTY: none

NOTICE: OK.

RELIEF REQUESTED: An order from this Court to set aside the Default Judgment dated February 16, 2024, against Defendant, and to quash any writ of possession/execution.

TENTATIVE RULING: The Motion to Set Aside Judgment and Quash Any Writ of Possession/Execution is DENIED.

BACKGROUND

On June 29, 2023, Plaintiff Northwestern Mutual Life Insurance Company (“Plaintiff”) filed an Unlawful Detainer Complaint (the “Complaint”) against Defendant and Does 1 through 10.

On July 31, 2023, Plaintiff filed its Request for Dismissal, dismissing Does 1-10, which was entered by the Clerk on the same day. Following this, on August 1, 2023, a Default Judgment – Unlawful Detainer – was filed by Plaintiff and entered by the Clerk.

Subsequently, on August 30, 2023, Defendant filed a motion to set aside judgment.

On January 18, 2024, Department F51 Court granted Defendant’s Ex Parte Application for an Order Staying Execution of Judgment until hearing on Defendant’s Motion to Set Aside Judgment. At the same hearing, Department F51 Court set aside and vacated all judgment on the Complaint. Plaintiff indicated that it would re-serve Defendant. (1/18/24 Minute Order.)

On January 24, 2024, Plaintiff re-served Defendant through personal service. (2/15/24 Proof of Personal Service.)

On February 15, 2024, Plaintiff filed its Request for Entry of Default against Defendant and all other occupants, which was subsequently entered by the Clerk on the same day. Following this, on February 16, 2024, a Default Judgment – Unlawful Detainer – was filed by Plaintiff and entered by the Clerk (the “Judgment”).

On February 20, 2024, Plaintiff filed an Application for Writ of Possession, which was entered into record by the Clerk on the same day.

On April 29, 2024, Defendant filed the instant Motion to Set Aside Judgment and Quash Any Writ of Possession/Execution (the “Motion”).

No Opposition or Reply papers have been received by the Court.

ANALYSIS

Code of Civil Procedure section 473 subdivision (b) provides, in pertinent part, that “[t]he 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. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”

Code of Civil Procedure section 473.5, subdivision (a) sets forth, in relevant part, that “[w]hen 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.”

Code of Civil Procedure section 473.5, subdivision (c), further provides, “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.”

A.    Motion to Set Aside

Defendant moves the Court to set aside the Judgment dated February 16, 2024.

As a preliminary matter, the Court notes that although the Motion cites statutes and case law, it lacks the necessary legal analysis required for the Court’s review.

Consequently, the Motion is deficient and fails to meet the requirement under California Rules of Court, rule 3.1113(b), which sets forth that “[t]he memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.”

The Court now turns to consider Defendant’s main assertion that he did not receive the Summons and Complaint in time to file an answer on time because he “received the complaint in [the] mailbox [on] Feb. 20, 2024.” (Joseph Decl. ¶ 2.) Defendant asserts that he did not have access to the mailbox. (Ibid.)  

1)      Relief under Code of Civil Procedure section 473(b)

The Code of Civil Procedure section 473(b) provides, in part, that, “The court may, upon any terms as may be just, relieve a party . . . from a judgment . . . taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief . . . shall be made within a reasonable time, in no case exceeding six months.”

The standard applied is whether the act or omission is one that a reasonably prudent person would commit under the same circumstances. (See Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 Cal.App.2d 275, 279 (Transit Ads).)

Furthermore, Evidence Code section 647 establishes that a registered process server’s declaration of service establishes a presumption affecting the burden of producing evidence of the facts stated in the declaration. (See also Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.)

Here, the case file indicates that Plaintiff filed a Proof of Personal Service on February 15, 2024, indicating that Defendant was personally served at 4:03 p.m. on January 24, 2024, at the address of 9400 Corbin Ave. Unit 4004 Northridge, CA 91324. The process server’s declaration describes Defendant as a male African American, aged 30, 5’5” in height, weighing 170 pounds, with black-dread hair and brown eyes. (2/15/2024 Proof of Personal Service.)

            The Court finds that the Proof of Personal Service establishes a statutory presumption under Evidence Code section 647. Consequently, Defendant is required to produce evidence that he was not served. (See, e.g., American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390 [fn 2: the defendant declared that the description on the proof of service does not fit, and the trial court and plaintiff did not contradict this aspect of defendant's declaration when they saw defendant at the motion hearing.])

            Here, Defendant asserts that “[t]hey never served me at All [sic].” (Joseph Decl., at p. “8.”) However, without more evidence, the Court determines that Defendant’s mere assertion is insufficient to rebut the statutory presumption of effective personal service, thereby failing to substantiate his claim with factual evidence.

            Therefore, the presumption that Defendant has been personally served remains. Defendant has not demonstrated any “extrinsic fraud, mistake, inadvertence, or excusable neglect.”

Accordingly, the discretionary relief under Code of Civil Procedure section 473(b) is not granted.

2)      Relief under Code of Civil Procedure section 473.5

It is axiomatic that strict compliance with the code's provisions for service of process is not required. (Pasadena Medi–Center Associates v. Superior Court (1973) 9 Cal.3d 773, 778 (Pasadena Medi-Center); Dill v. Berquist Construction Co., (1994) 24 Cal.App.4th 1441,1436 (Dill); Espindola v. Nunez (1988) 199 Cal.App.3d 1389, 1391.) The service of process statutes should be “liberally construed to effectuate service and uphold the jurisdiction of the court if actual notice has been received by the defendant.” (Pasadena Medi-Center, supra, at p. 778.) “The liberal construction rule, it is anticipated, will eliminate unnecessary, time-consuming, and costly disputes over legal technicalities, without prejudicing the right of defendants to proper notice of court proceedings.” (Ibid.) “Thus, substantial compliance is sufficient.” (Dill, supra, at p. 1437.)

“[A] finding of substantial compliance can only be sustained where (1) the record shows partial or colorable compliance with the requirement on which the objection is predicated; (2) the service relied upon by the plaintiff imparted actual notice to the defendant that the suit was pending and that he was bound to defend; and (3) the manner and objective circumstances of service were such as to make it highly likely that it would impart such notice.” (Carol Gilbert, Inc. v. Haller (2009) 179 Cal.App.4th 852, 855, 101 (Haller).)

Here, Plaintiff has met its burden by filing a Proof of Service. (2/15/2024 Proof of Service.) As analyzed previously, Defendant has not rebutted the presumption that he was personally served. Therefore, there is no basis for claiming a “lack of actual notice” as required to implicate Code of Civil Procedure section 473.5. Furthermore, Defendant has not attached an Answer, or any other pleading proposed to be filed in the action, thus also failing to meet the requirement mandated by the same section. (See Code Civ. Proc., § 473.5, subd. (b) [“The [moving] party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.”])

Therefore, the Court concludes that relief under Code of Civil Procedure section 473.5 is unavailable to Defendant.

3)      Relief under Code of Civil Procedure sections 473(d), 128(a)(8), and 86(b)(3)

Code of Civil Procedure section 473(d) provides, “The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” (Underlines added.)

It is clear that this section does not apply in this case as there is no evidence of any “clerical mistakes in its judgment or order as entered[.]”

Moreover, Code of Civil Procedure section 128, subdivision (a)(8) sets forth, in pertinent part, “Every court shall have the power to do all of the following: ... (8) To amend and control its process and orders so as to make them conform to law and justice[.]”

In this instance, Defendant has not provided sufficient showing that vacating the Judgment is necessary to conform to law and justice. Consequently, there are no legal grounds to set aside or vacate the Judgment under this code section.

Furthermore, Code of Civil Procedure section 86, subdivision (b)(3) outlines, “The following cases in equity are limited civil cases: ... (3) A case to vacate a judgment or order of the court obtained in a limited civil case through extrinsic fraud, mistake, inadvertence, or excusable neglect.”

The section does not apply here for multiple reasons: first, the present case is filed under unlimited jurisdiction, and second, as previously analyzed, there is no demonstration of “extrinsic fraud, mistake, inadvertence, or excusable neglect.”

Based on the foregoing, the Court DENIES the Motion to Set Aside Judgment and Quash Any Writ of Possession/Execution.

CONCLUSION

Defendant’s Motion to Set Aside Judgment and Quash Any Writ of Possession/Execution is DENIED.

Moving party to give notice.