Judge: Gail Killefer, Case: 24STCV06376, Date: 2025-03-28 Tentative Ruling
Case Number: 24STCV06376 Hearing Date: March 28, 2025 Dept: 37
HEARING DATE: Friday March 28, 2025
CASE NUMBER: 24STCV06376
CASE NAME: American Express National Bank v. Ilan Kenig
MOVING PARTY: Defendant Illan Kenig
OPPOSING PARTY: Plaintiff American Express National
Bank
TRIAL DATE: Default Judgment Entered
PROOF OF SERVICE: OK
PROCEEDING: Motion to Quash Service
of Summons or Set Aside Default
OPPOSITION: 05 March 2025
REPLY: 24
March 2025
RECOMMENDATION: Defendant’s Motion to Quash the Service of Summons, or in the
Alternative, Set Aside the Entry of Default is denied.
Background
On March
14, 2024, American Express National Bank (“Plaintiff”) filed a Complaint
against Ilan Keing (“Defendant”) for Breach Of Contract.
After many failed attempts to serve the Defendant, default was
successfully entered against the Defendant on January 7, 2025. That same day,
Plaintiff moved for Default Judgment and Default Judgment was granted on
January 16, 2025. On January 22, 2024, Notice of Entry of Default was served on
Defendant.
Defendant now moves to quash the service of summons on the basis
he was not served with notice, or in the alternative, to set aside the default
pursuant to CCP § 473.5.
I. Legal Standard
A. Motion to Quash
A defendant may serve
and file a notice of motion to quash service of summons on the grounds of lack
of jurisdiction over it.¿ (CCP, § 418.10(a).)¿ CCP § 418.10 provides the
exclusive procedure for challenging personal jurisdiction at the outset.¿(Roy
v. Superior Court (2005) 127 Cal.App.4th 337, 342.)¿ Although the defendant
is the moving party, the burden of proof is on the plaintiff to defeat the
motion by establishing that jurisdictional grounds exist.¿(Mihlon v.
Superior Court (1985) 169 Cal.App.3d 703, 710.)¿
B.
Set Aside Default/Vacate the
Judgment
CCP
§ 473.5(a) provides in relevant part:¿¿¿
¿¿
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.¿¿
Additionally,
the motion “shall be accompanied by an affidavit showing under oath that the
party's lack of actual notice in time to defend the action was not caused by
his or her avoidance of service or inexcusable neglect. The party shall serve
and file with the notice a copy of the answer, motion, or other pleading
proposed to be filed in the action.” (CCP, § 473.5(b).)¿¿
“The
court may, upon motion of the injured party, or its own motion, correct
clerical mistakes in its judgment or orders as entered, so as to conform to the
judgment or order directed, and may, on motion of either party after notice to
the other party, set aside any void judgment or order.” (CCP, § 473(d).) ¿
II. Discussion
Defendant
asserts that he was never served with proof of service and attaches various
rejected proofs of service (“POS”) previously filed by Plaintiff. However, the
only POS at issue is the one served via substitute service on September 25,
2024, and filed with the court on December 23, 2024. This is the POS used to obtain the entry of
default according to the Declaration of Aaron N. Baldaro, filed on December 23,
2024.
Defendant
asserts that he is not the person served with the September 25, 2024, POS because
the racial description of the person served is described as
“Middle-Eastern/Possibly Israeli” which Defendant asserts does not match him
because “my skin tone has always been considered white, contrary to the
description provided by the Plaintiff in their Proof of Service.” (Kenig Decl.,
¶ 5.)
Moreover,
while the September 25, 2024 POS stated a male “JOHN DOE, refused name,
Co-Resident” was the person who was given the service of summons and Complaint,
Defendant asserts he is “only male residing in the house, and no such
interaction occurred.” (Ibid. ¶ 5.)
Defendant
asserts he was never served at his current residence or at an address where he
could expect to receive notice and states: “The address of 1008 N Ogden, West
Hollywood 90046 was as of May 15, 2024 (until today)” an active construction
site (Id. ¶ 4), which Plaintiff admits.
“When a defendant
challenges the court’s personal jurisdiction on the ground of improper service
of process ‘the burden is on the plaintiff to prove the existence of
jurisdiction by proving, inter alia, the facts requisite to an effective
service.’”¿ (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.) A
proof of service containing a declaration from a registered process server
invokes a rebuttable presumption affecting the burden of producing evidence, of
the facts stated in the return. (Evid. Code, § 647; see American Express
Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390.) The party
seeking to defeat the service of process must present sufficient evidence to
show that the service did not take place as stated.¿ (See Palm Property
Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1428.) Merely
denying service took place without more is insufficient to overcome the
presumption.¿(Id.)
Defendant’s
declaration denying that service was proper at the residence “1355 Berea Place
Pacific Palisades, CA 90272” fails to rebut the September 25, 2024 POS
Declaration by a registered process server.
First,
the process server stated that after leaving the documents with John Doe, they were mailed to Defendant at
the Pacific Palisades address on September 25, 2025, a contention Defendant
fails to deny. (POS filed 12/23/2024.) Second, on reply, Defendant does not
deny that his residence was 1355 Berea Place, which burned down during the
Palisades fire that began on January 7, 2025, (Kenig Supp. Decl., ¶ 7, Ex. D),
thus confirming he did reside at 1355 Berea Place at the time of service on September
25, 2024.
Third,
Plaintiff’s counsel presents evidence that the “1355 Berea Place Pacific
Palisades, CA 90272” address was obtained due to locating an unlawful detainer
(“UD”) action filed against Defendant, entitled Vig Private Lending, Inc. v.
Ilan Kenig et al. (LASC Case No. 24STCV05062). (Baldaro Decl., ¶ 12, Ex.
J.) Plaintiff’s counsel attaches a declaration from Defendant, wherein he
states:
My wife Avivit Kenig and our 3
minor children rent the property located at 1355 Berea Place, Pacific
Palisades, CA 90272 (“the Property”). We moved in to the property on or about
March 21, 2023, pursuant to a written lease with the owner at the time, 1355
Berea, LLC.
[ . . . ]
My wife and I were renting the
Property from 1355 Berea, LLC since March 21, 2023, long before the foreclosure
in February, 2024. We paid our rent to the former owner of the property and our
tenancy was never terminated. Our lease has never been cancelled and we are
willing and able to continue paying rent to the present owner of the property.
(Declaration
of Ilan Kenig filed in Opposition to Motion for Summary Judgment on 09/20/24 in
LASC Case No. 24STCV05062, ¶¶ 2, 8.) Defendant’s Kenig’s declaration in the UD
action confirms that Defendant resided at “1355 Berea Place Pacific Palisades,
CA 90272” and there is no evidence that he resided elsewhere on September 25,
2024.
Lastly,
substitute service is proper if a copy of the summons and complaint is left at
the person's dwelling house,
usual place of abode, usual place of business, or usual mailing address . . .
in the presence of a competent member of the household or a person apparently
in charge of his or her office, place of business, or usual mailing address . .
. [who is] at least 18 years of age, who shall be informed of the contents
thereof, and by thereafter mailing a copy of the summons and of the complaint
by first-class mail, postage prepaid to the person to be served at the place
where a copy of the summons and complaint were left. Service of a summons in
this manner is deemed complete on the 10th day after the mailing.
(CCP,
§ 415.20(b).)
Defendant’s
evidence fails to show that he was not served at his “dwelling house” or “usual
place of abode.” Therefore, the court finds the September 25, 2024, POS was
validly served and denies the motion to quash based on improper service.
Defendant
also requests that the entry of default be set aside because he did not receive
notice of the hearing on January 7, 2025.
Pursuant
to CCP § 587, Defendant’s request for entry of default states that a copy of
the request was mailed to Defendant’s residence on January 7, 2025, the date
the Pacific Palisades fire erupted. (See Civ-100 §6.b filed 01/07/2025.) “[S]ection 587 expressly
provides that nonreceipt of the notice is not, by itself, a ground for
setting aside a default judgment.” (Rodriguez v. Henard (2009) 174
Cal.App.4th 529, 537 citing Jackson v. Bank of America (1983) 141
Cal.App.3d 55, 59 [nonreceipt of section 587 notice is not adequate ground for
setting aside a default or default judgment]; see also Flood v. Simpson
(1975) 45 Cal.App.3d 644, 648, fn. 4 [accord]. Accordingly, the court may not
set aside the entry of default and default judgment on the basis that Defendant
did not receive notice of the request.
While
the court set the OSC Re: Responsive Pleading or Default for January 17, 2025,
the default judgment hearing was set for January 16, 2025. Defendant asserts
that he did not become aware of this action until January 16, 2025, but when
presented himself in court the next morning on January 17, 2025, he learned
that default judgment had already been entered. (Keni Decl., ¶ ¶7, 8.) While
there is no evidence disputing Defendant’s contention that he received no
notice of the January 16, 2024, hearing, notice of the hearing is not a
requirement for entry of default or default judgment.
CCP
§ 473.5 applies “[w]hen service of a summons has not resulted in actual
notice to a party in time to defend the action” and not when the party has
received no notice of the hearing for entry of default/default judgment. (CCP,
§ 473.5.) Moreover, Defendant’s affidavit failed to show he lacked actual
notice because he failed to show that service at “1355 Berea Place Pacific
Palisades, CA 90272” was not proper and he was not mailed a copy of the summons
and Complaint on September 25, 2024, as stated by the process server. (POS
filed 12/23/2024.) Therefore, there are no facts supporting Defendant’s
contention that he lacked actual notice of the action or that his failure to
defend the action was not due to his avoidance or inexcusable neglect. (CCP, §
473.5(b).)
More
importantly, CCP § 473.5(b) requires that the Defendant have served and filed
with the notice of this motion, “a copy of the answer, motion, or other
pleading proposed to be filed in the action”; something he neglected to do.
The
Motion is denied.
Conclusion
Defendant’s Motion to Quash the
Service of Summons, or in the Alternative Set Aside the Entry of Default is
denied.