Judge Elaine W. Mandel, Case Number: 20SMCV01208, Date: 2024-04-23 Tentative Ruling

Judge: Elaine W. Mandel, Case: 20SMCV01208, Date: 2024-04-23 Tentative Ruling

Case Number: 20SMCV01208 Hearing Date: April 23, 2024 Dept: P

Tentative Ruling

Kadosh v. Allarie-Larson, Case No. 20SMCV01208

Hearing Date: April 23, 2024

Defendant’s Motion to Set Aside Default

Defendant tenant seeks to set aside the default entered on November 02, 2023 on this failure to pay rent case. Defendant seeks relief under CCP 473.5, asserting that she did not have notice of because she was not served.

Evidentiary Ruling

Defendant’s Request for Judicial Notice of Proof of Service of Process filed by Plaintiff on November 02, 2020 is – GRANTED as it is a document of the court covered under Evidence Code 452(d).

A court may set aside a default or default judgment when service of summons has not provided a party with actual notice. Code of Civil Procedure § 473.5 states:

“(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. 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.

(b) 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.

(c) 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.”

Additionally, “‘[s]ervice of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.’ [Citation.]” AO Alfa-Bank v. Yakovlev (2018) 21¿Cal.App.5th 189, 202. “To establish personal jurisdiction, compliance with statutory procedures for service of process is essential.” Kremerman v. White (2021) 71 Cal.App.5th 358, 371. Defendant’s knowledge of the action does not dispense with statutory requirements for service of summons. Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466.

“When 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.

Plaintiff sues for failure to pay rent. Defendant argues she did not receive notice and the proof of service was inaccurate. The motion to set aside is not opposed. The defendant served this motion on the plaintiff by both mail and email on April 02, 2024.

Defendant stated she was not served by mail (def. decl., para. 5-6). Process server Melgoza stated she served at defendant’s residence, but in fact, the address served was the defendant’s PO Box (def. deal., para. 7), so defendant argues the declaration by the process server is fraudulent. Melgoza stated she gave the paperwork to “Chris Kim,” but nobody with that name works at the post office box location (def. decl., para. 8). Based on the proof of service filed by the plaintiff, Melagoza served the defendant by substituted service on September 14, 2020. Defendant further states she does not know what happened to the documents allegedly served by Melgoza (def. decl., para. 9).

Default was entered by the clerk on November 02, 2020 (see 11/02/20 Request for Entry of Default). The court notes defendant does not state how or when she learned of the default. Instead, defendant states she only received papers regarding this matter when she picked them up herself from the clerk (def. decl., para. 6). This does give the court an understanding of when defendant learned about the default or if, given the circumstances, she took reasonable steps to set aside the default promptly.

The court recognizes that public policy dictates matters be adjudicated on their merits, not by way of default. Thus, on a motion for relief from default, “doubts must be resolved in favor of relief….” Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 134.

As plaintiff filed no opposition, there is no claim of prejudice or counter evidence indicating that service was proper.

The motion is untimely, as notice of motion for relief under CCP 473.5 must be made either two years after entry of a default judgment or 180 days after service of written notice that the default or default judgment has been entered. Code Civ. Proc. § 473.5(a) Here, default judgment was entered on February 17, 2021. No proof of service indicates notice was served regarding either the default or default judgment on the defendant. Thus, under Code of Civil Procedure section 473.5, defendant was required to have filed the motion no later than February 17, 2023, to be entitled to relief under CCP 473.5.

Nevertheless, considering that public policy favors relief, the court is inclined to exert its inherent equitable powers to set aside the default and default judgment as evidence of a false proof of service does constitute grounds for extrinsic fraud. County of San Diego v. Gorham (2010) 186 Cal.App. 4th 1215, 1229. However, defendant would still need to make a showing under the Rappleyea standard that she has a meritorious defense, which can be proven with a proposed answer to the complaint and has shown diligence in seeking to set aside the default once discovered. Rappleyea v. Campbell (1994) 8 Cal.4th 975, 982. Defendant may provide supplemental papers with evidence regarding when and how she discovered the default or default judgment and how she proceeded in a timely manner to seek relief from the default and default judgment. The matter may be continued to allow defendant to submit such supplemental declaration.