Judge: Deirdre Hill, Case: 21TRCV00459, Date: 2022-08-02 Tentative Ruling
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Case Number: 21TRCV00459 Hearing Date: August 2, 2022 Dept: M
| Superior Court of Southwest District Torrance Dept. M | |||
| FINISHMASTER INC., | Plaintiff, | Case No.: | 21TRCV00459 |
| vs. | | [Tentative] RULING | |
| ALLEN SOK, | Defendant. | | |
| | | | |
Hearing Date: August 2, 2022
Moving Parties: Defendant Allen Sok
Responding Party: Plaintiff Finishmaster Inc.
Motion to Set Aside Default and Default Judgment Pursuant to CCP §473.5
The court considered the moving and opposition papers.
RULING
The motion is GRANTED. The default entered on August 27, 2021 and default judgment entered on September 9, 2021 are set aside and vacated. Defendant is ordered to file an answer within five days.
BACKGROUND
On June 23, 2021, plaintiff Finishmaster Inc. filed a complaint against Allen Sok, an ind. dba Coach Automart for breach of contract, open book account, account stated, and reasonable value.
A default was entered on August 27, 2021.
A default judgment was entered on September 9, 2021.
LEGAL AUTHORITY
CCP §473.5(a) states, in relevant part: “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.”
The phrase “actual notice” means “genuine knowledge of the party litigant” and does not include constructive or imputed notice to the client. Tunis v. Barrow (1986) 184 Cal. App. 3d 1069, 1077.
CCP §473.5(b) requires that “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.”
CCP §473.5(c) allows “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] default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.” Dill v. Berquist (1994) 24 Cal. App. 4th 1426, 1444. “Where a party moves under section 473(d) to set aside ‘a judgment that, though valid on its face, is void for lack of proper service, the courts have adopted by analogy the statutory period for relief from a default judgment’ provided by section 473.5, that is, the two-year outer limit.” Trackman v. Kenney (2010) 187 Cal. App. 4th 175, 180 (citations omitted). “Thus, defendant cannot assert under section 473(d) that the judgment, although facially valid, is void for lack of service.” Id. at 181.
DISCUSSION
Under CCP §473.5, defendant Allen Sok requests that the court set aside the default and default judgment entered against him.
The proof of service filed on August 26, 2021 indicates that defendant was substitute served on July 7, 2021 at 1858 W. Rosecrans, Gardena via Alex Barajas “person in charge” by a registered process server.
Defendant states in his declaration that “1858 W. Rosecrans, Gardena, CA 92048 is not correct address.” He further states that in February 2019, he sold his business located at that address and moved to the city of Fullerton. He states that the summons was delivered to his previous address that he sold more than two years ago from the date of the summons. He states that “I never received anything about this action and said notice did not result in actual notice.” On January 24, 2022, he “found that examination hearing was scheduled for January 26, 2022.” Although he did not know what the examination was for, he went to Dept. M and plaintiff’s attorney did not appear and the clerk “told me to go.”
In opposition, plaintiff incorrectly asserts that defendant moved under CCP §473, instead of CCP §473.5. Plaintiff contends that defendant was aware that a judgment had been entered against him but does not argue that defendant was properly served or that defendant had actual notice in time to defend the action. Plaintiff also asserts that plaintiff’s counsel mailed defendant letters on July 12, 2021 and August 24, 2021, but the court notes that the address on each letter was the incorrect Rosecrans address.
The court finds that the motion is timely and that defendant’s lack of actual notice in time to defend the action was not caused by his avoidance of service or inexcusable neglect.
The motion is thus GRANTED.
The court notes that defendant failed to serve and file a copy of a responsive pleading. Granting of the motion is conditioned upon filing of an answer within 5 days.
The clerk is ordered to give notice of ruling.