Judge: Gary I. Micon, Case: 23CHCV02890, Date: 2024-10-16 Tentative Ruling

Case Number: 23CHCV02890    Hearing Date: October 16, 2024    Dept: F43

MOTION TO SET ASIDE/VACATE DEFAULT

MOVING PARTY: Defendant Ashot Mkhitaryan

RESPONDING PARTY: No response has been filed.

RELIEF REQUESTED

Defendant is requesting that the Court enter an order setting aside or vacating the default entered against him.

RULING: Motion is granted.

SUMMARY OF ACTION

On September 27, 2023, Plaintiff Christopher Anderson (Plaintiff) filed his premises liability complaint against Defendant Ashot Mkhitaryan (Defendant). The complaint alleges causes of action resulting from a dog bite.

Plaintiff filed a proof of service indicating that Defendant was served via substituted service at his residence at 28617 Owen Ct., Santa Clarita, CA, on January 22, 2024. It is unclear from the wording on the proof of service if the documents were served on a co-resident of the home or if the documents were given to a man working on the house because the proof of service mentions that a man working on the house picked up the papers and said that they were trash. (Farazian Decl., Ex. B.) On March 19, 2024, Plaintiff filed a request for entry of default, which was entered by the Clerk. On July 31, 2024, Defendant filed a motion to set aside/vacate default.

Defendant argues in his motion to set aside default that he did not receive notice of this action because he was not residing at his residence at the time of service because it was under significant construction, and the person served was not a member of his household.

Defendant’s attorney began working on this case in late July 2024. Defendant indicates in his motion that the parties previously had an agreement to allow him to file a responsive pleading by August 1, 2024, (Farazian Decl., ¶ 9, Ex. E), but Plaintiff would only agree to this if Defendant was just filing an answer. Defendant instead intends to file a motion to strike. He filed a proposed motion to strike with this motion to set aside default.

Defendant requests that the Court either enforce the parties the parties prior agreement and allow Defendant to file the responsive pleading, or simply grant this motion to set aside default. Because there was no formal agreement between the parties, only an email chain, the Court will address Defendant’s motion to set aside default.

No opposition has been filed.

ANALYSIS

CCP Section 473(b) states as follows: 

The court may, upon any terms as may be just, relieve a party…from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.

The law favors hearings on the merits, so any doubts as to the application of section 473 should be resolved in favor of the party seeking relief from default. (See Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1139-1140.) Furthermore, a trial court has wide discretion to grant relief under CCP § 473(d). (Berman v. Klassman (1971) 17 Cal.App.3d 900, 909.)

In this case, Defendant indicates that the documents in this case were served on construction workers who were working on his home while he was residing elsewhere and who were not authorized to accept service on his behalf. (Mkhitaryan Decl., ¶¶ 5-9.) He states that he was made aware that papers were delivered to his house but were thrown out by the workers, which matches the wording of the proof of service regarding the worker saying that the papers were trash, and though Defendant tried to find the papers, he was unsuccessful. (Mkhitaryan Decl., ¶ 10.) Defendant also claims that he never received the papers in the mail. (Mkhitaryan Decl., ¶ 11.) He claims that he did not become aware of the lawsuit until he received the request for default in the mail in March 2024, but it was too late to respond to the lawsuit at that point. (Mkhitaryan Decl., ¶¶ 12-13.) After receiving those documents, Defendant forwarded them to his insurer and had an attorney assigned. (Mkhitaryan Decl., ¶ 14.)

It does not appear that Defendant had actual notice of the lawsuit prior to the entry of default, in which case CCP § 473.5 would also apply. However, regardless of whether he had notice of the lawsuit, he filed his motion to set aside default within the six month timeframe contemplated by CCP § 473(b), and it was accompanied by his proposed motion to strike. Defendant also indicates that the default was entered against him due to inadvertence, mistake, or excusable neglect.

Because the law favors hearings on the merits and Defendant has met the requirements of CCP § 473(b), that is sufficient to set aside the default entered against him.

The Court grants Defendant’s motion.

CONCLUSION

Defendant’s motion to set aside and vacate entry of default is granted. Defendant’s motion to strike is deemed filed.

Moving party to give notice.