Judge: Elaine W. Mandel, Case: 23SMCV02101, Date: 2024-05-09 Tentative Ruling

Case Number: 23SMCV02101    Hearing Date: May 9, 2024    Dept: P

Tentative Ruling

New Carla, LLC v. Schwarz, case no. 23SMCV02101

Hearing date 5/9/24

Defendant Schwarz’s Motion to Set Aside Default Judgment

In this unlawful detainer matter, plaintiff obtained a default judgment against defendant tenant for $106,766.52 on 8/23/23. Defendant moves to set aside, pursuant to CCP 473.5(a), (b), arguing she was not properly served and had no notice of the action.

Plaintiff leased a home in Beverly Hills to defendant Schwarz. Defendant alleges she vacated the premises from 2/12/23-4/23 due to mold, water and fire damage at the property. Schwarz decl., para. 3.

Defendant was allegedly substitute served on 5/20/23. Per the process server Alpisa, a Jane Doe was served. Defendant Schwarz alleges she was in Cannes, France at that time (5/14/23-5/23/23) and had no co-occupants. Schwarz decl., para. 5.  Defendant argues the proof of service is false, as she was not home, had no co-occupant and is unaware of anyone matching the description given of Jane Doe. Defendant states she did not receive notice via mail.

On 6/30/23 defendant was served with a writ for ‘possession only’ by the Sheriff. Schwarz decl., para. 6. Defendant stated the first time she was made aware of the suit seeking money damages was in February 2024. Schwarz decl., para. 7, but she does not state how she was made aware.

Plaintiff argues defendant was aware of the suit and in fact she contacted plaintiff on 5/26/23 asking for contact information for plaintiff’s counsel. On 6/5/23, defendant sent an email to plaintiff stating she had spoken to plaintiff’s attorney. However, plaintiff does not attach these emails or submit a declaration regarding those emails. Further, nothing in the alleged emails states defendant was aware litigation seeking money damages had been commenced.

A party may move to set aside when there is no actual notice per CCP 473.5. CCP 413.10 states a summons must be properly served. Plaintiff has the burden of proof regarding service. Plaintiff fails to meet their burden.

There is a public policy preference for litigating matters on their merits, rather than proceeding via default. Considering that public policy favors relief, the court is inclined to exert its inherent equitable powers to set aside the default and default judgment. However, defendant does not provide evidence regarding how and when she allegedly learned of the suit and whether she promptly moved to set aside the default.

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.