Judge: Elaine W. Mandel, Case: 21SMCV00970, Date: 2025-06-16 Tentative Ruling

Case Number: 21SMCV00970    Hearing Date: June 16, 2025    Dept: P

Tentative Ruling

Kanji v. Gryga, Case no. 21SMCV00970

Hearing date June 16, 2025

Defendant Perez’s Motion to Set Aside Default and Default Judgment

Plaintiff Kanji alleged defendant husband and wife Gryga and Quezon, along with notary Perez forged and recorded a deed of trust and two promissory notes in 2006. Perez was defaulted 6/28/23. Following trial the court issued a statement of decision on 8/6/24. Kanji requested, and the court entered, default judgment against Perez 3/19/25.

Perez moves to set aside the default and default judgment, asserting she was unaware of the case, and the FAC was never served on her. Kanji opposes. The motion was continued to allow Perez to file a reply, as Kanji served the opposition on an incorrect address and email.

Perez requests judicial notice of: (1) summons on the complaint 5/27/21; (2) complaint 5/27/21; (3) FAC dated 11/12/21; (4) plaintiff’s application for service by publication 4/28/23; (5) order granting service by publication 5/1/23; (6) proof of publication 5/25/23; (7) Kanji’s request for default 6/28/23; (8) statement of decision 8/6/24; (9) minute order adopting the 8/6/24 statement of decision 10/14/24; (10) default and default judgment against Perez 3/19/25; (11) Kanji’s declaration in support of default judgment; (12) default judgment against Perez 3/20/25 of $481,789.97; (13) notice of entry of judgment 4/21/25; and (14) judgment against Kanji on 12/20/24 on the FAC and for Quezon against Kanji for $215,553.44. The court may take judicial notice of its own records. Cal. Evid. Code §452(d). GRANTED.

A default judgment is properly set aside where service did not result in actual notice to the defendant in time to defend the action. See Cal. Code Civ. Proc.§473.5. §473.5(a) states: "[w]hen the service of a summons has not resulted in actual notice to a party in time to defend the action and a default or a 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…” Id. For purposes of §473.5, "actual notice" means genuine notice to the party litigant. See Tunis v. Barrow (1986) 184 Cal.App.3d 1069, 1077; Rosenthal v. Gamer (1983) 142 Cal.App.3d 891, 895.

Kanji argues the motion is barred by §473(b)’s six-month time limit. Default judgment was entered 3/20/2025. RJN 12. Perez filed her motion on 5/13/25, within the six-month window. The motion is timely.

Kanji argues Perez has been dilatory in moving to set aside the default. Perez asserts she never received notice of the complaint or summons and only learned of the action on 3/28/25. Decl. Perez paras. 35-37. Perez had never heard of nor read the Los Angeles Daily Journal, in which Kanji published. Decl. Perez paras. 28-30; RJN 6. Perez learned of the case after receiving notice of an involuntary lien. Decl. Perez para. 37. Perez has been prompt in moving to set aside the default.

Kanji argues default may only be set aside by a showing of inadvertence or excusable neglect, asserting Perez had imputed notice. Kanji asserts service was attempted on Perez’s residence 6 times and the publicized notice was posted for four weeks. RJN 5, 7. There is a presumption of sufficient service when accomplished via process server or in compliance with statutes permitting service by publication. See Cal. Evid. Code §§641, 647. This presumption is, however, rebuttable. Cal. Evid. Code §604. Perez offered her declaration, under penalty of perjury, which creates an issue of fact as to service.

Perez asserts Kanji never served the operative pleading. Decl. Perez paras. 36, 39-45. Perez asserts Kanji’s service by publication contained the original complaint and summons, not the then-operative FAC. Perez argues failure to serve the operative FAC renders service by publication insufficient per Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426 (“[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.”).

Perez did not receive actual notice of the case, was never served the operative pleading and demonstrates intent to engage in the litigation. California disfavors defaults, preferring to resolve issues on their merits. GRANTED.