Judge: David B. Gelfound, Case: 24CHCV00898, Date: 2025-03-04 Tentative Ruling

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Case Number: 24CHCV00898    Hearing Date: March 4, 2025    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION TO SET ASIDE DEFAULT JUDGMENT

Motion filed: 8/26/24

MOVING PARTY: Defendant Yehoram Uziel

RESPONDING PARTY: Plaintiff Steven A. Simons

NOTICE: defective proof of service

RELIEF REQUESTED: An order setting aside the default judgment entered against Defendants DC Partners, Inc. and Yehoram Uziel on August 12, 2024.

TENTATIVE RULING: The Motion is DENIED.

BACKGROUND

This action arises from damages that Plaintiff allegedly sustained due to Defendants’ failure to pay for legal services rendered by Plaintiff.

On March 19, 2024, Plaintiff Steven A. Simons (“Plaintiff” or “Simons”) filed a Complaint against Defendant DC Partners, Inc. (“DC Partners”), Yehoram Uziel (“Uziel”) (collectively, “Defendants”), and Does 1 to 5, alleging two causes of action: (1) Common Counts, and (2) Breach of Contract.

On June 5, 2024, the Court Clerk entered a default against Defendant DC Partners. The following day, June 6, 2024, a default was entered against Defendant Uziel.

On August 8, 2024, Plaintiff filed a request for entry of default judgment against Defendants and a concurrent request to dismiss Does 1 to 5. Both requests were later entered on the same day.

On August 26, 2024, Defendant Uziel filed the instant Motion to Set Aside Default Judgment (the “Motion”). Subsequently, Plaintiff filed his Opposition on February 19, 2025, and Uziel submitted a Reply on the same day.

ANALYSIS

Code of Civil Procedure section 473, subdivision (b) allows a court to set aside a default judgment arising from a party or attorney’s “mistake, inadvertence, surprise, or excusable neglect” (emphasis added). Courts recognize a “surprise” as any condition or situation in which a party is unexpectedly placed to the party’s injury, without any default or negligence by the party, against which ordinary prudence could not have been guarded. (County of Los Angeles v. Financial Cas. & Sur. Inc. (2015) 236 Cal.App.4th 37, 44.) A defendant may also move to vacate a judgment based on the court’s equitable power. (Rappleyea v. Campbell (1994) 8 Cal. 4th 975, 982.)

A.    Procedural Defect

Code of Civil Procedure section 1005 provides in pertinent part that “[u]nless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing.”

            Here, the hearing on the Motion is set for March 4, 2025, meaning that the Motion shall have been served upon Plaintiff no later than February 6, 2025, calculated based on 16 court days notice period under Code of Civil Procedure section 1005, excluding any applicable extensions for the method of service.

            In his Opposition, Plaintiff asserts that the Motion should be rejected for lack of service, arguing that Plaintiff’s counsel was not served with the Motion. (Opp’n. at p. 6; Wiener Decl. ¶ 2.)

            The Court notes that the Motion contains a proof of service document, stating that the moving papers were served “BY EMAIL,” on August 26, 2024, to: “Steven A. Simons Law office of Steven A. Simons, Robert A. Wiener Esq, attorney for Steven A. Simons.” (Mot. at p. 13.)

            However, the proof of service does not include “the electronic service address” – i.e., the email addresses of the recipients – as required under Code of Civil Procedure section 1013b, subdivision (b). Accordingly, the proof of service, attached to the Motion, does not strictly comply with the statutory requirements and contains a technical defect.

            Nevertheless, assuming service is in substantial compliance, the Court will proceed to consider the merits of the Motion and Opposition papers.

B.     Motion to Set Aside

Defendant Uziel moves the Court to set aside the default judgment entered against him on August 8, 2024, on multiple grounds, including (1) surprise, mistake, or excusable neglect; (2) lack of actual notice; and (3) void judgment.

The Court will now address each argument in turn.

(1)   Defendant Has Failed to Demonstrate Surprise, Mistake, or Excusable Neglect.

Code of Civil Procedure section 473, subdivision (b) provides for both discretionary and mandatory relief. (Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.) The discretionary provision states in relevant part:

“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. 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 Civ. Proc., § 473, subd. (b), underlines added.)

            Neglect is excusable only if a reasonably prudent person in similar circumstances might have made the same error. (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276.)

The moving party bears the burden of establishing entitlement to relief from the judgment. (Parage v. Couedel (1997) 60 Cal.App.4th 1037, 1041.) A party seeking relief must “establish his position by a preponderance of the evidence.” (Price v. Hibbs (1964) 225 Cal.App.2d 209, 215.)

            Here, while the Motion is timely as it was filed within the statutory time limit, Uziel has failed to articulate any cognizable claim of surprise, mistake, or excusable neglect. The Motion lacks any factual basis or explanation identifying a specific event that constitutes inadvertence or excusable neglect to cause his failure to defend, resulting in his default. Mere invocation of statutory grounds, without substantive support, is insufficient to warrant relief.

Accordingly, the Court finds that Uziel has failed to meet his burden as the moving party. As such, discretionary relief under Code of Civil Procedure section 473, subdivision (b), may not be granted. (See Parage v. Couedel (1997) 60 Cal.App.4th 1037, 1042 [“where a party fails to show that a judgment has been taken against him through his mistake, inadvertence, surprise or excusable neglect the court may not grant relief. It has no discretion.”])

(2)   Proper Service Provided Actual Notice in Time to Defend.

Courts may set aside a default or default judgment due to lack of actual notice. Code of Civil Procedure section 473.5 states in part: “(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.” (Code Civ. Proc., § 473.5, subd. (a).)

Notably, “[a]ctual notice is express information of a fact, sometimes referred to as ‘genuine knowledge.’ (Civ. Code, § 18; see also Ellard v. Conway (2001) 94 Cal.App.4th 540, 547–548 [“actual notice” in Code Civ. Proc., § 473.5, which permits a party to set aside a default judgment if a defendant has not been properly served, means “genuine knowledge”] (underlines added).) (Sullivan v. Centinela Valley Union High School Dist. (2011) 194 Cal.App.4th 69, 77.)

Here, Uziel denies that he was served, claiming that he never received personally or substituted service. (Uziel Decl. ¶ 12.) He asserts that he first learned about this case only after the default judgment was entered. (Id. ¶ 13.) Additionally, Uziel appears to argue that his lack of actual notice also stems from his belief that he does not owe Plaintiff any money for his service. (Id.  ¶ 10.)

However, established California law holds that filing of 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; Evid. Code § 647 [“The return of a process server registered pursuant to Chapter 16 (commencing with Section 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.”])

The case record contains two proofs of service documents, indicating that on April 29, 2024, a registered process server, George Semerjian (License number 2024053303), personally served both Defendants – DC Partners and Uziel. The documents reflect that Uziel was personally served in his individual capacity and as an agent for service of process for DC Partners at 19329 Bryant St. Northridge, CA 91324. (Wiener Decl. Ex. “1,” “2.”) This address matches the information Uziel provided in his Motion.

Furthermore, the process server identified the person served and described him as a “70 years old, male, gray hair, hazel eyes, 5’6”; 175 lbs.”) (Wiener Decl. Ex. “1.”) Uziel does not dispute that this description matches him. Nor does he present any contradictory evidence to challenge the validity of the proofs of service.

The Court finds the two proofs of service documents filed by Plaintiff comply with the applicable statutory requirements. Additionally, there is a properly issued Summons on Complaint.

Accordingly, the Court finds that a rebuttable presumption of proper personal service has been established.

In contrast, Uziel’s unsupported assertions that he was not served and, consequently, lacked actual notice – without any corroborating evidence – are insufficient to rebut the presumption of proper service. (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390 [“... the trial court was not required to accept this self-serving evidence contradicting the process server’s declaration...”])

Accordingly, the Court finds that proper service provided actual notice to both Defendants, including Uziel.             

Likewise, Uziel’s declaration asserting his belief that he does not owe Plaintiff any payment does not negate the finding that he received actual notice through proper service. Proper service imposes a legal obligation to timely respond and defend against the claims, regardless of Uziel’s subjective belief about liability.

Therefore, the Court concludes that relief based on lack of actual notice is inapplicable in this case.

(3)   Defendant Has Failed to Demonstrate that the Default Judgment is Void.

Courts may also set aside a void judgment. “A summons is the process by which a court acquires personal jurisdiction over a defendant in a civil action. The form of a summons is prescribed by law, and this form must be substantially observed. [Citation.] Service of a substantially defective summons does not confer jurisdiction over a party [citation] and will not support a default judgment. [Citation.]” (MJS Enterprises, Inc. v. Superior Court (1984) 153 Cal.App.3d 555, 557.) “Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.’ [Citation.]” (Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 858.) The trial court may set aside any void judgment or order at any time. (Code Civ. Proc., § 473, subd. (d).)  

            Here, Uziel argues that the default judgment is void because “the summons and complaint were never validly served on the defendant, and the defendant lacked actual notice of this lawsuit.” (Mot. at p. 5.)

            However, the Court has found that Plaintiff properly effectuated personal service on Defendants, as evidenced by two proofs of service. In contrast, Uziel’s self-serving declaration, without any supporting evidence, is insufficient to overcome the finding or meet his burden in seeking relief.

            Accordingly, the Court concludes that the default judgment is not void and that Uziel’s request for relief on this ground is unavailable.

            Based on the foregoing, the Court DENIES the Motion.

CONCLUSION

Defendant Yehoram Uziel’s Motion to Set Aside Default Judgment is DENIED.

Moving party to give notice.