Judge: Jill Feeney, Case: 20STCV26495, Date: 2023-04-12 Tentative Ruling
Case Number: 20STCV26495 Hearing Date: April 12, 2023 Dept: 30
Department 30, Spring Street Courthouse
April 12, 2023
20STCV26495
Motion to Set Aside Request for Default filed by Defendants Shayan Davatgarzadeh and Farnaz Eghbali
DECISION
The motion is denied as moot with respect to Defendant Shayan Davatgarzadeh since he has been dismissed from the case.
Motion is continued with respect to Defendant Farnaz Eghbali.
The parties are ordered to appear on the hearing date to discuss a continued hearing date.
Defendant Farnaz Eghbali is ordered to file evidence establishing that the service address (638 14th Street Santa Monica, CA 90402-2930) was not his dwelling house or usual place of abode as of March 15, 2022, the alleged date of service.
Moving party to provide notice.
Background
This is an action for negligence arising from a vehicle collision which took place in July 2018. Plaintiff Jonathan Pineda filed his Complaint against Defendants Shayan Davatgarzadeh and Martha Martinez on July 14, 2020.
On March 9, 2022, Plaintiff filed a Doe Amendment naming Farnaz Eghbali as a Defendant in this action.
On July 18, 2022, Defendant Martha Martinez was dismissed from this action.
On November 10, 2022, default was entered against Defendant Farnaz Eghbali.
On December 2, 2022, Shayan Davatgarzadeh was dismissed from this action.
On December 12, 2022, Eghbali filed the instant motion to set aside default against him.
Summary
Moving Arguments
Eghbali, the only defendant remaining in this action, moves to set aside default on the grounds that he was never properly served and had no notice of this action.
Opposing Arguments
None.
Legal Standard
The Court may set aside any void judgment or order at any time. (Code Civ. Proc., § 473, subd. (d); Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1249.) Code of Civil Procedure section 473.5, subdivision (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.” (Code Civ. Proc., § 473.5, subd. (a).)
“‘A summons is the process by which a court acquires personal jurisdiction over a defendant in a civil action’ [citation], and a defendant has an absolute right to demand that process be issued against him in a manner prescribed by law.” (Mannesmann DeMag, Ltd. v. Superior Court¿(1985) 172 Cal.App.3d 1118, 1122.) “Constitutional due process requirements are satisfied where the form of service provided and employed is¿reasonably¿calculated¿to give a litigant actual notice of the proceedings and an opportunity to¿be heard.” (Crescendo Corp. v. Shelted, Inc.¿(1968) 267 Cal.App.2d 209, 213.) “‘[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.” (Ellard v. Conway¿(2001) 94 Cal.App.4th 540, 544.)
A defendant may file a belated responsive pleading up to the time of entry of default. (People v One 1986 Toyota Pickup (1995) 31 CA4th 254, 259–260.) An entry of default cuts off a defendant’s opportunity to file a responsive pleading unless vacated by a judge. (Parish v Peters (1991) 1 CA4th 202, 209.)
Code Civ. Pro. section 415.20 provides that “[i]f a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served . . . a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business...in the presence of… a person apparently in charge of his or her…place of business…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.” (Code Civ. Proc., § 415.20(b).)
Discussion
Defendant Eghbali moves to set aside default judgment on the grounds that he was never served with notice of this action. Eghbali’s counsel argues in the motion that Plaintiff served the summons to an address at which Eghbali never resided and that Plaintiff failed to inform Eghbali’s counsel or his insurance company of the Amended Complaint naming Eghbali.
Eghbali’s counsel testifies that Plaintiff’s counsel never informed her of the Doe Amendment naming Eghbali or that Eghbali had been served. (Hurley Decl., ¶7.) If Plaintiff’s counsel had informed Eghbali’s insurer or his counsel of the Doe Amendment, Eghbali would have responded to the amendment. (Id., ¶9.)
The evidence is insufficient to show Eghbali received no notice of this action or that service on Eghbali was defective. Counsel’s declaration shows that Plaintiff did not inform Eghbali’s counsel that Plaintiff named Eghbali in a Doe Amendment. However, counsel’s lack of notice alone does not show Eghbali received no notice of the action or that service on Eghbali was defective. Plaintiff’s proof of service filed on March 25, 2022 shows Eghbali was served via substituted service at 638 14th St., Santa Monica, CA 90402. Although Eghbali’s motion states that Eghbali has never resided at this address, there is no evidence supporting this argument.
