Judge: Frank M. Tavelman, Case: 23BBCV01900, Date: 2024-03-01 Tentative Ruling

Case Number: 23BBCV01900    Hearing Date: March 1, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO SET ASIDE/VACATE DEFAULT JUDGMENT AND DEFAULT

NOTICE:

The Court is not requesting oral argument on this matter.  Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required.  Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no notice of intent to appear is received.”  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

On August 16, 2023 Plaintiffs Gary Pantaleo and Kathleen Pantaleo (collectively, “Plaintiffs”) filed an action against Defendants Christopher Valentine and Christian Tolen Von Lahr  (collectively, “Defendants”) for unlawful detainer.  

On October 30, 2023, the Defendants failed to appear for trial, after notice of the Final Status Conference and the trial date were sent to Defendants.  The Court conducted an uncontested court trial and the Court entered judgment in favor of Plaintiffs and against Defendant Christopher Valentine in the amount of $56,319.80.

HISTORY: 

On January 5, 2024, Defendant Valentine filed the instant Motion to Set Aside and Vacate Default Judgment (“Motion”). Plaintiffs filed opposition on February 20, 2024. As of February 26, 2024, at 2:00 p.m., Defendant Valentine has not filed his reply.

ANALYSIS: 

I.                    LEGAL STANDARD 

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.)

“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.)¿¿¿ 

II.        MERITS 

Defendant asks the Court to void the judgment on the following basis: (1) there was excusable neglect, mistake, surprise, or inadvertence (§473(b)); (2) default was entered despite the Defendant’s lack of actual notice of the lawsuit in time to respond (§473.5); (3) default is void sing the legal papers were not served to Defendant (§473 (d)); (4) void since they were based (in whole or in part) on external fraud or mistake; and (5) the judgment was invalid/void, therefore any Writ of Possession/Execution used to enforce the Judgment was improperly issued. (§128 (a)(8).)

Default judgment was granted on November 27, 2023 and Defendant Valentine alleges that he discovered it on January 3, 2024. (Valentine Decl. ¶ 4.)

Defendant states that he was never served by anyone. (Valentine Decl. p. 8.) In support of Defendant’s motion, he only attaches his own declaration. However, Defendant only states that Plaintiffs’ counsel has a “history of not noticing.” (Id. at ¶ 2.) Additionally, he claims that after he filed his answer, he never received any notices. (Id.)  Defendants allege that the did not receive actual notice of the lawsuit in time to respond; however, each defendant did file a responsive pleading with the court – each filed an answer.

In opposition, Plaintiffs Gary Pantaleo and Kathleen Pantaleo identify the fifteen mailings from either the Clerk or Plaintiff’s counsel’s office which were mailed to Defendant’s home address. (Opp. p. 4.).  This is the same address in which the original Summons and Complaint were mailed; both of which each defendant filed an answer.  Furthermore, each defendant filed a request for fee waivers and supplemental fee waivers.   Still, Defendant claims to have not received anything other than a Summons and Complaint. In support of Plaintiffs’ opposition, they attached several documents relating to the eviction, such as the entry demand writing, notice of lease fraud writing, lien 3-day notice writing, and two business checks in the amount of $3,500.00. They also note that Defendants failed to comply with the Court’s order on remitting rent payments and have a business operating out of the Burbank home.

The Court does not find that Defendant has provided adequate proof that he was not served with notice of the action. Therefore, the Court finds no defects in the proof of service that cause the judgment to be void. Given the sufficiency of the proof of service on each of the fifteen mailings, the Court declines to find the service on Defendant defective. Defendant does not provide any evidence or support as to the other grounds sought. Thus, Defendant Valentine’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 Christopher Valentine’s Motion to Set Aside and Vacate Default Judgment came on regularly for hearing on March 1, 2024, 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. 

PLAINTIFF TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  March 1, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles