Judge: David B. Gelfound, Case: 23CHCV02165, Date: 2024-06-05 Tentative Ruling

Case Number: 23CHCV02165    Hearing Date: June 5, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION TO SET ASIDE JUDGMENT AND QUASH WRIT OF POSSESSION

Motion filed: 4/17/24

MOVING PARTY: Defendants Maria Verdugo and Orlando Duron (“Defendants”)

RESPONDING PARTY: Plaintiff Southwest California Properties, LLC (“Plaintiff”)

NOTICE: OK. 

RELIEF REQUESTED: An order from this Court to set aside the Default Judgment dated March 5, 2024, against Defendants, and to quash writ of possession.

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

BACKGROUND

This case arises from alleged lease disputes between the landlord Plaintiff and the tenant Defendants.

On July 21, 2023, Plaintiff filed a Complaint against Defendants, and Does 1 to 10, alleging two causes of actions: (1) Breach of Contract, and (2) Common Counts.

On September 21, 2023, Plaintiff filed its request for entry of default, which the Court rejected for lack of proof of service.

On March 4, 2024, Plaintiff filed its Request for Dismissal as to Defendant Maria Verdugo and Does 1 to 10, which the Clerk entered the same day. Additionally, Plaintiff filed its Request for Entry of Default Judgment against Defendant Orlando Duron and concurrently submitted a proof of personal service. The Court granted the Default Judgment on March 5, 2024.

On April 17, Defendants filed the instant Motion to Set Aside the Default Judgment to Quash Writ of Possession (the “Motion”). Subsequently, Plaintiff filed its Opposition on April 26, 2024.

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 Judgment

Defendants move the Court to set aside the Default Judgment dated March 5, 2024 (the “Default Judgment”). Defendants argue that the Default Judgment should be set aside on the grounds of lack of actual notice of the suit under the authority of Code of Civil Procedure section 473.5. (Mot., at p. 4.) Alternatively, Defendants argue that the Default Judgment should be set aside based on mistake and excusable neglect, pursuant to Code of Civil Procedure section 473, subdivision (b), and section 473.5, subdivision (c). (Mot., at p. 5.)

Before proceeding, the Court notes the case record reflecting that the Default Judgment was entered against one Defendant Orlando Duron (“Duron”). (3/5/24 Judgment) The case record also indicates that the other moving Defendant Maria Verdugo had been dismissed at Plaintiff’s request on March 4, 2024.

            Accordingly, the Motion is deemed moot as to Defendant Maria Verdugo.

1)      Defendant Duron’s Lack of Actual Notice of the Action

Duron asserts that he was never properly served with the complaint and summons in this case, depriving the Court of having personal jurisdiction over him and rendering the Default Judgment void. (Mot., at p. 4.)

It is settled case law that “[w]hen a defendant challenges the court’s personal jurisdiction on the ground of improper service of process, ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.’” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.) Filing proof of service that complies with the applicable statutory requirements creates a rebuttable presumption of proper service. (Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.) Notably, the reliability of a service declaration from a registered process server is set by statute. The return of a process server registered pursuant to Chapter 16 (commencing with §22350) of Division 8 of the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return. (Evid. Code § 647.)

Here, Plaintiff filed a proof of personal service on March 4, 2024, which declares that a registered process server, Kris Fujimoto, served Duron, “at 13083 Cascade Court, Arleta, CA 91331 ... on 7/23/23 ... at (time): 11:00 a.m.” (3/24/24 Proof of Personal Service, ¶¶ 3-5,7) Additionally, Kris Fujimoto attests, “I had previously, on June 4, 2023, served this same individual a summons and complaint in unlawful detainer case number 23CHUD00766[.]” (Fujimoto Decl., ¶ 5.)

However, the Court observes a discrepancy in the declaration by Kris Fujimoto in Plaintiff’s reply papers, stating that the personal service in question “was made in driveway at 13839 Cascade Avenue, Arleta, California, 91331” (Fujimoto Decl., ¶ 3) (underlines added), which indicates a different street number from the address as declared on Plaintiff’s proof of service, namely “13083 Cascade Court, Arleta, CA 91331.”  (2024/3/4 Proof of Service, ¶ 4.)

Notably, Duron’s declaration concedes that the address on the Proof of Service dated March 4, 2024, is the correct address. (Duron Decl., ¶ 2.) He does not argue that any information is incorrect on the Proof of Service but merely states he did not receive proper personal service without presenting any factual evidence, failing to meet the burden to rebut the presumption.

Based on the foregoing, the Court DENIES the Motion to Set Aside Default Judgment.

2)      Defendant Duron’s Mistake and Excusable Neglect

Duron further contends that his lack of actual notice in time to defend was not caused by his avoidance of service or inexcusable neglect; thus, he maintains that the Court may set aside the default or default judgment, pursuant to Code of Civil Procedure section 473.5, subdivision (c), and section 473 subdivision (b). (Mot., at p. 5)

The Court notes that this argument fundamentally relies on the determination of previous issue of the valid personal service. Given that the Court has concluded that Defendant Duron has not met his burden to rebut the presumption of valid personal service established by the Proof of Service dated March 4, 2024, the Court finds this argument – based on the same ground that he lacks actual notice of the case – must fail.

Accordingly, the Court DENIES the Motion to Set Aside Default Judgment on this ground.

B.     Motion to Quash Writ of Possession

The Court notes that the case record does not include a Writ of Possession. Additionally, Defendant Duron does not assert any alternative grounds to support his motion to quash writ of possession, other than his claim of not being properly served.

For the same reason explained in the above analysis, the Court DENIES the Motion to Quash Writ of Possession.

CONCLUSION

Defendants’ Motion to Set Aside Default Judgment and Quash Writ of Possession is DENIED.

Moving party to give notice.