LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

 

MOTION TO SET ASIDE & STAY WRIT

 

MP:	Summit Medical Supply Corp. (Defendant)
RP:	Borden Business Properties, LLC (Plaintiff) – No response filed

 

NOTICE:

 

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify 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 argument is received.  

 

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

 

ALLEGATIONS: 

 

Borden Business Properties, LLC (Plaintiff) brings this unlawful detainer action against Summit Medical Supply Corp. (Summit). Plaintiff alleges that Summit is wrongfully in possession of the property commonly known as 9313 Borden Ave Sun Valley, CA 91352.

 

On February 28, 2024, the Court entered default judgment in favor of Plaintiff against Summit. On March 5, 2024, Plaintiff obtained a writ of possession for the property pursuant to the aforementioned default judgment.

 

Before the Court is a Motion to Set Aside Default and Stay Writ brought by Summit. Summit contends that it was never served with notice of this litigation and that the default should be set aside pursuant to C.C.P § 473.5. Plaintiff has rendered no opposition to this motion.

 

The Court notes that it appears this is the second time Plaintiff has pursued an unlawful detainer action against Summit for this property. Plaintiff obtained a default in Case Number 24BBCV00407 which was subsequently set aside by stipulation of the parties. No notice of related case was filed when Plaintiff brought the instant action.

 

ANALYSIS: 

 

I.                LEGAL STANDARD 

 

CCP § 473.5(a) provides: “When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment 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 or default judgment has been entered.”

 

“[A]ctual notice in section 473.5 means genuine knowledge of the party litigant…[A]ctual knowledge has been strictly construed, with the aim of implementing the policy of liberally granting relief so that cases may be resolved on their merits.’” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 547 [Citations Omitted].)

 

“[A] party can make a motion showing a lack of actual notice not caused by avoidance of service or inexcusable neglect . . .” (Trackman v. Kenney (2010) 187 Cal. App. 4th 175, 180.) “‘[I]t does not require a showing that plaintiff did anything improper…[T]he defaulting defendant simply asserts that he or she did not have actual notice’.” (Id.)

 

II.              MERITS

 

Previous Case

 

The Court notes that Case Number 24BBCV00407 was a previous unlawful detainer action between these two parties concerning the same property. The vast majority of Summit’s 191-page submission in support of this motion relates to the previous case. Summit’s counsel submits that the default in the previous unlawful detainer action was stipulated to be set aside by the parties. (Silva Decl. ¶ 3.) Summit maintains that 9313 Borden Avenue is occupied by So-Cal Discount Medical Supply, Inc. (So-Cal) and that this action (along with the previous action) are being pursued against Summit erroneously. (Silve Decl. ¶ 5.) The Court notes that Summit’s declaration in support of this motion is made by Adam Delmonte (Delmonte), who states he is a representative of both Summit and So-Cal. (Delmonte Decl. ¶ 4.)

 

Service in the Instant Case

 

The Court’s record reflects that Plaintiff effectuated service on Summit via posting of the Summons and Complaint at 9313 Borden Avenue. Service was effectuated in this way upon Court order, after Plaintiff demonstrated to the Court that they could not gain access to the gated property to personally serve Summit Medical Supply Corp. on several occasions. (See Feb. 2, 2024 Order on Plaintiff’s Application.)

 

Actual Notice

 

Regardless of whether Summit is an appropriate party to this action, this motion was brought and briefed on the basis of C.C.P. § 473.5. Such a motion requires Summit to show that it lacked actual notice of the instant lawsuit such that it could not render a timely defense. The Court finds Summit’s submissions are insufficient to demonstrate the lack of actual notice.

 

Summit Medical Supply Corp. submits the declaration of their officer Delmonte in support of their motion. Delmonte states that, on or about May 4, 2024, he received information that “the Los Angeles County Sheriff’s Department delivered a document to So-Cal Discount Medical Supply, Inc.’s principal place of business at 9313 Borden Ave, Sun Valley, CA 91352 entitled, “Notice to Vacate” with an attached “Writ of Possession” related to “Case Number 24BBCV00407.” (Delmonte Decl. ¶ 6, located at Mot. p. 169.) Delmonte attests that a copy of this writ is attached as Exhibit E to his declaration, but no such exhibit is attached. Delmonte further states “Summit Medical Supply Corp. was never served with notices, or any process related to Los Angeles Superior Court Case Number 22BBCV00407.” (Delmonte Decl. ¶ 7.)

 

The Court finds Delmonte’s declaration makes no statements concerning the instant case and writ of possession. Delmonte’s declaration only references the writ issued in Case Number 24BBCV00407. Additionally, Delmonte makes no representations as to whether Summit received the summons and complaint in this case. Both of Delmonte’s statements regarding service of process only reference the previous unlawful detainer action. While this may be a typographical error, the identification of the correct case number in a statement submitted under penalty of perjury is a serious deficiency. The Court cannot presume Delmonte’s declaration as evidence of lack of actual notice in this case applies when it solely references a different case with similar facts which occurred in another court. 

 

Further, the Court is confused by Delmonte’s statement regarding his fear that the writ would be wrongfully enforced. Delmonte states that the Notice to Vacate was directed at Summit and that he became fearful that the Sheriff might accidentally enforce the writ of possession against So-Cal. (Delmonte Decl. ¶ 8.) The Court is confused by this statement. It is Summit’s position that they are improperly named in the current writ of possession, and that So-Cal occupies the property at 9313 Borden Ave.  Why then does Delmonte fear the writ would be enforced against So-Cal, the allegedly appropriate party? Likewise, this issue was highlighted at the June 11, 2024 ex parte matter.  The Delmonte declaration appears submitted with this motion appears to be the same deficient declaration submitted for the ex parte matter heard on June 10^th and June 11^th. 

 

In short, the Court finds Summit has not produced evidence that it did not receive actual notice in this action. While Summit maintains that it is the incorrect party in this litigation, the declarations and documentary evidence appear to concern only the previous unlawful detainer action. As such, the Court is without evidence from which to determine that Summit did or did not have actual notice of this litigation.

 

Accordingly, the motion to vacate default and stay writ 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 

 

Summit Medical Supply Corp.’s Motion to Vacate came on regularly for hearing on July 5, 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 DEFAULT IS DENIED.

 

UNLESS ALL PARTIES WAIVE NOTICE, SUMMIT MEDICAL TO GIVE NOTICE.  

 

IT IS SO ORDERED. 

 

DATE:  July 5, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles