Judge: Frank M. Tavelman, Case: 20BBCV00338, Date: 2023-02-03 Tentative Ruling

Case Number: 20BBCV00338    Hearing Date: February 3, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO SET ASIDE/VACATE DEFAULT JUDGMENT

ALLEGATIONS: 

On May 27, 2020 Plaintiff UMPQUA Bank (“UMPQUA”) filed an action against Defendant Gevork Sarkisyan (“Defendant”) and Does 1 through 10 with three causes of action: (1) breach of consumer loan agreement; (2) money lent; and (3) account stated. The amount sought was $49,504.35.

On August 20, 2020, the Court entered default against Defendant. On August 24, 2020, the Court entered default judgment in favor of Plaintiff and against Defendant in the amount of $56,155.20 reflecting interest accrued upon the principal. UMPQUA has subsequently filed two Writs of Execution, most recently on December 06, 2022 for $69,038.41 reflecting post-judgment interest.

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”). No opposition has been filed.

ANALYSIS: 

I.                    LEGAL STANDARD 

The Court notes that Defendant’s motion mistakenly states the grounds of his Motion as Federal Rule of Civil Procedure 60(b)(1). Vacatur of default motions in the California Superior is 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. §473.5(d) allows the Court to find a judgment void, even if facially valid, when service is defective resulting in the Court lacking jurisdiction. “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.)

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 and more than 180 days after notice of entry of default was mailed to the Service Address on September 3, 2020.

The Court finds no defects in substitute service that cause the judgment to be void. UMPQUA submitted proof of service which provides that substitute service was made on Defendant at his home at 10013 Rutledge Place, Sun Valley, CA 91352. The process server made three attempts: the first on June 15, 2020, the second on June 18, 2020, and the third on June 27, 2020. The process server stated that in the final attempt they left the summons and complaint with a woman who was approximately five-foot-six and appeared 30 years old. A copy of the summons and complaint was mailed to the Rutledge address on June 29, 2020.

Defendant asks the Court to void the judgment on basis that he was improperly served, stating that the address UMPQUA served him at was never his home. In support of Defendant’s motion, he attaches several documents relating to theft of his identity which occurred during the years 2017 through 2019. Defendant also submits certified mailing receipts from November 5, 2021 with a return address of 2416 W Victory Blvd., Burbank, CA 91506. None of the documents Defendant submits shows his address during time of service on June 27, 2020. Defendant claims that he never resided at the 10013 Rutledge address. However, one of the documents Defendant submits, a letter received from Jefferson Capital, is clearly postmarked to the service address. (Exh. 1, p. 6.)

Given the above defects and 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 without prejudice.

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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 Gregory Sarkisyan’s Motion to Set Aside and Vacate Default Judgment came on regularly for hearing on February 3, 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 3, 2023                             _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles