Judge: Helen Zukin, Case: 22SMCV00236, Date: 2022-12-06 Tentative Ruling
Case Number: 22SMCV00236 Hearing Date: December 6, 2022 Dept: 207
Background
Plaintiff Margaret Buckley (“Buckley”) brings this action
against Defendant Bagder Etebari (“Defendant”) alleging causes of action for
breach of contract and common counts. Plaintiff filed a proof of service
showing substitute service on Defendant on February 24, 2022. Defendant did not
file an Answer or other appearance in connection with this action and on May
17, 2022, default judgment was entered against him. Defendant now moves to set
aside the entry of default and default judgment against him pursuant to Code
Civ. Proc. § 473.5 on the basis that he did not receive actual notice of this action
until August 2022, at which time the default judgment had already been entered
against him. Plaintiff opposes Defendant’s motion.
Legal Standard
“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.” (C.C.P. § 473.5(a), emphasis added.)
“A notice
of motion to set aside a default or default judgment and for leave to defend the
action shall designate as the time for making the motion a date¿prescribed by subdivision
(b) of Section 1005, and it 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.” (Id. § 473.5(b).)
Analysis
1. Timeliness
of Plaintiff’s Opposition
Defendant correctly points out
Plaintiff’s opposition was untimely by one day pursuant to the deadlines
imposed by Code Civ. Proc. § 1005(b). However, the Court in its
discretion will consider the arguments raised in Plaintiff’s untimely
opposition. (CRC Rule 3.1300(d).)
2. Merits of
Defendant’s Motion
“‘[A]ctual notice’ in section 473.5
‘means genuine knowledge of the party litigant....’ [Citations.] ‘[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.’ [Citation.]” ¿(Ellard
v. Conway¿(2001) 94 Cal.App.4th 540, 547.) “[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.)
Defendant has submitted a
declaration stating he did not receive actual notice of this action until
August 17, 2022, when he was personally served with the Application and Order
for Appearance and Examination by Plaintiff. (Etebari Decl. at ¶4.) Plaintiff opposes
the motion, arguing Defendant was properly served with the Summons and
Complaint by substitute service on one of his children at Defendant’s residence
on February 24, 2022. In his motion, Defendant claims he is the only resident
of that property. (Id. at ¶3.) In opposition, Plaintiff argues Defendant
has testified that his children have resided at the property with him for the
last two years. In response, Defendant’s counsel submitted a declaration
stating “Mr. Smith’s declaration that Mr. Etebari stated that his daughter and
son in law have lived at the Grasswood Ave. house for more than two years does
not correlate with my recollection or my notes. After reading Mr. Smith’s
declaration, I called Mr. Etebari to discuss this point. He affirmed my recollection.”
(Rokita Reply Decl. at ¶3.) However, neither Ms. Rokita nor Defendant dispute
the claim that Defendant’s children reside with him at the property.
Ultimately the Court need not
resolve the dispute regarding Defendant’s testimony as to whether his children
live with him at the residence. As set forth above, the inquiry in resolving a
motion brought under Code Civ. Proc. § 473.5 is not whether Defendant was
properly served in compliance with the Code of Civil Procedure, rather the
question is whether Defendant received actual notice of the action. Plaintiff’s
substitute service on one of Defendant’s children at Defendant’s residence does
not conclusively establish that Defendant received actual notice of the lawsuit
as a result of such service.
The Court finds Plaintiff has
presented circumstantial evidence suggesting Defendant likely received notice
of the lawsuit through substitute service in February 2022 and subsequently
through service by mail on Defendant at his residence of various documents
pertaining to this case. However, the Court finds this circumstantial evidence
insufficient to conclusively rebut Defendant’s sworn statement in his
declaration that he did not receive actual notice until August 17, 2022.
“The law ‘favor[s] a hearing on the merits whenever possible,
and…appellate courts are much more disposed to affirm an order which compels a
trial on the merits than to allow a default judgment to stand.’ [Citation.]” (Mechling
v. Asbestos Defendants (2018) 29 Cal.App.5th 1241, 1246.) As the law favors judgments on the
merits, any doubts on a motion for relief from default must be resolved in
favor of the moving party. (Laselle v. Vogel (2019) 36 Cal.App.5th 127,
134.) Accordingly, the Court finds Defendant has sufficiently shown he did not
have actual notice of the action until default had already been entered against
him and this lack of notice was not the result of his avoidance of service or
inexcusable neglect.
Plaintiff
argues Defendant’s motion failed to file a copy of his proposed Answer as
required by the statute. Plaintiff is correct; however, the Court notes
Defendant has cured this defect by attaching a copy of his proposed Answer to
his reply.
Code Civ.
Proc. § 473.5 requires a motion for relief from default be brought withing “a
reasonable time” and sets an outer bound for this “reasonable” time period at
the earlier of (1) two years after entry of a default judgment against him; or
(2) 180 days after service on him of a written notice that such default or
default judgment has been entered. It is undisputed that Defendant brought the
instant motion before the expiration of these deadlines. The Court notes
Defendant filed his motion approximately three months after learning of the
case. The Court finds this satisfies the reasonableness requirement of section
473.5. (See, e.g., Goya v.
P.E.R.U. Enterprises (1978)
87 Cal.App.3d 886, 892-893 [affirming motion filed more than four months after
learning of the lawsuit was brought within a “reasonable time” as required by
section 473.5].)
Accordingly,
the Court finds Defendant has satisfied the requirements of Code Civ. Proc. §
473.5 and his motion to vacate the entry of default and default judgment
against him is GRANTED.
Conclusion
Defendant’s motion to set aside default and/or default
judgment is GRANTED.