Judge Holly J. Fujie, Case Number: 21STCV27752, Date: 2023-09-18 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

On July 28, 2021, Plaintiff filed a complaint (the “Complaint”) alleging violations of the Unruh Act.

On July 26, 2022, Moving Defendant’s default was taken, and on January 26, 2023, the Court entered default judgment against Moving Defendant. On June 29, 2023, Moving Defendant filed a motion to set aside the default and default judgment (the “Motion”) on the grounds that the service of the Complaint and summons did not result in Moving Defendant receiving actual notice of the litigation.

California Code of Civil Procedure (“CCP”) section 473.5 provides relief from default or default judgment to defendants who, despite proper service, never received “actual notice” of the lawsuit in time to defend against it. (Luxury Asset Lending, LLC v. Philadelphia Television Network, Inc. (2021) 56 Cal.App.5th 894, 908.) To obtain such relief, the defaulted defendant must submit an affidavit showing the lack of actual notice was not due to its avoidance of service or inexcusable neglect. (Id.) There is also a time limitation on such a motion. (Id.) It must be served and filed “within a reasonable time” but before the earlier of: (1) 180 days after service of written notice of the default or default judgment on the defendant or (2) two years after entry of the default judgment. (Id.) The trial court may set aside the default or default judgment if it finds the moving defendant has met the timeliness requirement and has shown the lack of actual notice was not due to avoidance of service or inexcusable neglect. (Id.) A motion brought pursuant to CCP section 473.5 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 their avoidance of service or inexcusable neglect. (CCP § 473.5, subd. (b).) 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. (Id.)

The amended Proof of Service (“POS”) filed on July 26, 2022 states that Moving Defendant’s attorney and registered agent Antonio Munoz (“Munoz”) was served via substitute service on June 10, 2022. The Complaint and summons were left with a receptionist, an unknown male identified as “Jane Doe” and then mailed to Munoz’s business address.

Moving Defendant did not learn of the Complaint until approximately the end of May 2023 when Plaintiff’s counsel called its owner. (Declaration of Thanos Paziouros (“Paziouros Decl.”) ¶ 2.) Plaintiff’s owner does not know the identity of the Jane Doe identified in the POS as the individual who accepted service of the Complaint. (Paziouros Decl. ¶ 3.)

Before it filed the Motion, Moving Defendant learned that Munoz’s law license is suspended and that Munoz does not maintain an office at the address that the Complaint was mailed to. (See Declaration of Scott A. Miller (“Miller Decl.”) ¶¶ 5-6, Exhibit C.) Munoz did not inform Moving Defendant of his 2014 disbarment or his abandonment of the representation. (See Supp. Paziouros Decl. ¶ 2.) Paziouros visited Munoz’s listed business address on July 13, 2023 and spoke to the current tenant, who informed him that Munoz had not been a tenant at the address for at least seven years. (See Paziouros Decl. ¶¶ 2-3, Exhibit A.)

The Court finds that Moving Defendant has demonstrated that it did not have actual notice of the existence of the Complaint before May 2023. There is no evidence that Moving Defendant was aware that Munoz was no longer serving as its registered agent or that the unknown individual who accepted service on June 10, 2022 informed Moving Defendant of the service. The Court therefore GRANTS the Motion in its entirety.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

[1] The Court has also considered the supplemental brief Moving Defendant filed on July 13, 2023 that the Court requested when it granted Moving Defendant’s ex parte application to stay the writ of execution on July 10, 2023.