Judge: Elaine W. Mandel, Case: 23SMCV01151, Date: 2024-05-30 Tentative Ruling

Case Number: 23SMCV01151    Hearing Date: May 30, 2024    Dept: P

Tentative Ruling

Altman v. Gillon Case No. 23SMCV01151

Hearing Date: May 30, 2024

Defendant Gillon’s Motion to Set Aside/ Vacate Default and Default Judgment

Plaintiff Altman brings a breach of contract action against defendant Gillon for failure to repay $240,700 in investment capital. Gillion moves to set aside and vacate the default and default judgment, arguing he lacked actual notice due to improper service.

Evidentiary Ruling

Plaintiff’s objections to the declarations of Gillon and DeCastro are OVERRULED; the declarations are signed under penalty of perjury. Plaintiff’s objection to Gillon’s Exhibit A is OVERRULED as the document is authenticated in paragraph 11 of Gillon’s declaration. Plaintiff’s objection to three new declarations filed in Gillon’s reply is OVERRULED as plaintiff fails to cite legal authority to support its objections. Plaintiff’s objection to the photograph attached to the Gillon declaration is SUSTAINED, as the photo is not authenticated.

Under §473(d), the court may set aside a void judgment. Under Code of Civ. Proc. §473.5 when service of a summons has not resulted in actual notice to a party in time to defend an action, defendant may serve and file a motion to set aside default within a reasonable time, not exceeding the earlier of two years after entry of default judgment or 180 days after service of notice of default. Code of Civ. Proc. §473.5. Additionally, a judgment is void if the initial complaint was not served in strict compliance with Code of Civ. Proc. §415.10, et. seq. Ellard v. Conway (2001) 94 Cal.App.4th 540. Public policy favors trial on the merits, so relief should be liberally granted absent prejudice. Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 740.

Default was entered against Gillon on June 29, 2023; default judgment was entered on April 17, 2024.

Plaintiff’s proof of service indicates substituted service was completed on April 17, 2023 by leaving the summons and complaint with John Doe, doorman of the condominium building located 343 E. 74^th Street Apt. 8F, New York, NY 10021. 05/02/23 Proof of Substituted Service. A copy was mailed to the same address. Id. The process server’s declaration of diligence states the doorman refused to allow access to Gillon’s actual apartment, and the doorman accepted the documents in accordance with his everyday duties. Id.

Gillon contends substituted service did not provide him with actual notice because service on his doorman did not comply with New York law. Gillon states he was never served on April 17, 2023, and the first document received was the request for entry of default that came by mail in July 2023. Gillon Decl. ¶¶ 2-3. Gillon provides declaration of De Castro, the doorman, who states he never received the commons and complaint addressed to Gillon. De Castro Decl. ¶ 2-3. Both declare they did not collude to evade service.

Relief is proper under Code of Civ. Proc. §473.5. Defendant moved to set aside within the time limit set forth in §473.5. The court is presented with contradictory declarations regarding service. Given the strong public policy in favor of resolving matters on the merits, rather than through default, without any basis for judging the credibility of the declarants, the court will err on the side of deciding this matter on the merits rather than via default. The motion is GRANTED. Defendant to file a responsive pleading within 15 court days.