Judge: Frank M. Tavelman, Case: 19BBCV00483, Date: 2023-02-10 Tentative Ruling

Case Number: 19BBCV00483    Hearing Date: February 10, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO SET ASIDE/VACATE DEFAULT JUDGMENT

ALLEGATIONS: 

On July 30, 2019 Plaintiff Porsche Leasing LTD (“Porsche”) filed an action against Defendant Lusvard Oganesyan (“Defendant”) and Does 1 through 10 with three causes of action: (1) possession of personal property, (2) deficiency judgment, (3) foreclosure of security interest with deficiency judgment, (4) breach of express written contract, (5) money lent, (6) account stated, (7) declaratory relief, and (8) injunctive relief.  

On November 22, 2019, the Court entered default judgment in favor of Plaintiff and against Defendant in the amount of $115,113.34.

HISTORY: 

On November 10, 2022, Defendant filed the instant Motion to Set Aside and Vacate Default Judgment (“Motion”) and Proposed Answer to Complaint (“Proposed Answer”). Porsche filed opposition on Jan 30, 2023. No Reply was received.

ANALYSIS: 

I.                LEGAL STANDARD 

The Court notes that Defendant improperly states the grounds of her Motion as Federal Rule of Civil Procedure 60(b)(1). Vacatur of default motions in the California Superior Court are governed by C.C.P. § 473.5. and the Court’s analysis will proceed under this statute.

C.C.P. § 473.5(a) provides as follows: “When service of a summons has not resulted in actual notice to a party in time to defend the action and a default… 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… has been entered.” 

C.C.P. § 473(d) allows the Court to find a judgment void, even if facially valid, in the instance that service is defective such that jurisdiction is lacking. “To establish personal jurisdiction, compliance with statutory procedures for service of process is essential; if a default judgment was entered against a defendant who was not served with a summons as required by statute, the judgment is void, as the court lacked jurisdiction in a fundamental sense over the party and lacked authority to enter judgment.” (Kremerman v. White (2021) 71 Cal.App.5th 358, 370.)

“Even where relief is no longer available under statutory provisions, a trial court generally retains the inherent power to vacate a default judgment…where a party establishes that the judgment or order was void for lack of due process or resulted from extrinsic fraud or mistake.” (County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1228.)¿¿ 

¿ 

“To set aside a¿judgment¿based upon extrinsic mistake one must satisfy three elements. First, the defaulted party must demonstrate that it has a meritorious case. Second, the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Last, the moving party must demonstrate diligence in seeking to set aside the default once ... discovered.” (Id., at p. 982.)¿¿¿ 

Substitute service is governed by C.C.P. § 415.20. Service can be effectuated by leaving the summons and complaint at the person’s dwelling house, usual place of abode, place of business or usual mailing address. Thereafter a copy of the summons and complaint must be mailed to the same address.

II.         MERITS 

Defendant’s motion pursuant to C.C.P. § 473.5 is untimely.  Defendant filed and served the instant motion more than two years after default was entered. The Court acknowledges that Defendant filed for a fee waiver on November 22, 2021, the last day on which she could file a motion to vacate under C.C.P. § 473.5. However, Defendant did not file her motion until May 5, 2022, at which time it was rejected as her fee waiver had expired. Defendant subsequently re-applied for fee waiver on October 20, 2022 and filed her motion the same day.

Defendant asks the Court to void the judgment on basis that she was improperly served, stating that the address Porsche served her at was never her home. In support of Defendant’s motion, she attaches several documents relating to theft of her identity which occurred during the years 2017 through 2018. None of the documents Defendant submits shows her address during time of service on July 7, 2019. Defendant submits her Federal Trade Commission Identity Theft statement, in which the Groton Drive address appears. However, it is unclear if this is listed as her address at the time the report was generated or an address which was fraudulently attributed to her.

In opposition, Porsche points to its submitted proof of service which provides that substitute service was made on Defendant at her home at 517 Groton Drive, Burbank, CA 91504. The process server made six attempts to serve Defendant at the above address throughout June and July of 2019. On two of these occasions the process server states they spoke with a person at the address who identified himself as Defendant’s son. The process server stated that in the final attempt on July 7, 2019 they left the summons and complaint with a man who was approximately five-foot-nine and appeared 50 years old. A copy of the summons and complaint was mailed to the Groton Drive address on July 8, 2019. Porsche also attaches a copy of Defendants driver’s license, issued in 2015, which lists her as residing at the Groton Drive address. (Farmer Decl., Exh. 3.)

The Court does not find that Defendant has provided adequate proof that she was not served with notice of the action. As such, the Court finds no defects in substitute service that cause the judgment to be void. Given the sufficiency of the process server affidavit, the Court declines to find the service on Defendant defective. Any other grounds for a motion to vacate stand outside the statutory limits provided by C.C.P. §473.5(a). As such, Defendant’s motion is DENIED.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Defendant Lusvard Oganesyan’s Motion to Set Aside and Vacate Default Judgment came on regularly for hearing on February 10, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION TO SET ASIDE AND VACATE DEFUALT JUDGMENT IS DENIED. 

IT IS SO ORDERED. 

DATE:  February 10, 2023                            _______________________________ 

                                                                         F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles