Superior Court of California 

County of Los Angeles 

Department 78 

 

5th ST LOFT LLC,

Plaintiff, 

vs. 

ANTON IVCHENKO,

Defendant. Case No.: 23STCV14300

DEFENDANT IVCHENKO’S MOTION TO SET ASIDE DEFAULT JUDGMENT

 

The motion is GRANTED. Default and default judgment are set aside.

Defendant is ordered to file and serve the answer attached to his motion on or before February 6, 2024.

Defendant is notified that the address provided on his motion is his address of record for purposes of receiving notices from the Court and service from Plaintiff.

If that address changes, Defendant must immediately file a MC-040 and serve that MC-040 on counsel for Plaintiff.

The parties are ordered to appear (remotely or otherwise) at the hearing as further dates will be set.

 Moving party to provide notice.

FACTUAL BACKGROUND  

This is an action for recovery of COVID-19 rental debt arising from a lease the parties entered into in February 2020. Plaintiff 5th St. Loft, Inc. alleges that Defendant Anton Ivchenko has not been paying rent since March 2020.

PROCEDURAL HISTORY

On June 20, 2023, Plaintiff filed this Complaint against Ivchenko.

On October 4, 2023, the Court entered Default Judgment in favor of Plaintiff and against Ivchenko.

On November 16, 2023, Defendant filed this motion to set aside default judgment.

On January 22, 2024, Plaintiff filed an opposition.

DISCUSSION 

Defendant Anton Ivchenko moves to set aside default judgment pursuant to Code of Civil Procedure Section 473.5.

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. [Citation.] Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. [Citation.]’” (Ellard v. Conway¿(2001) 94 Cal.App.4th 540, 544.)  

Code Civ. Proc. 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, or usual mailing address . . . in the presence of…a person apparently in charge of his or her office . . . 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…to the person to be served at the place where a copy of the summons and complaint were left . . . .” (Code Civ. Proc., section 415.20(b).) Service of a summons in this matter is deemed complete on the 10th day after the mailing. (Id.)

Where service is carried out by a registered process server, Evidence Code, section 647 applies to eliminate the necessity of calling the process server as a witness.  (Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1427.)  The proof of service in this circumstance establishes a presumption, affecting the burden of producing evidence of the facts stated in the return.  (Id. at 1428.)  “The effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence. . .”  (Id.)  

Here, Plaintiff’s proof of service filed August 1, 2023 states that on July 27, 2023 at 1:30 p.m. the process server served  K. Arseny, Manager at 2511 Lincoln Blvd., Venice, CA 90291 (“Lincoln Address”). The proof of service indicates that K.Arseny was a person of at least 18 years of age apparently in charge at the office or the usual place of business of the person to be served. A description of K. Arseny was also provided: "Male, Middle Eastern, Black hair, 30's, 5'7, 165-175 lbs, facial hair." The papers were mailed to the same address on the same day.

Plaintiff's affidavit of due diligence filed August 1, 2023  documents two prior unsuccessful attempts to serve Defendant at the Lincoln Address. On July 20, 2023, one of the unsuccessful attempts to serve, John Doe (Caucasian, Blonde Hair, 5'7, 20) stated that Defendant was out of the office. On July 23, 2023, John Doe informed the process server that Defendant was not available. The affidavit then sets forth the service effectuated on K.Arseny which is described in the proof of service. 

Defendant concedes that the Lincoln Address is the location of DaVinci Motors Rent A Car, a business that is owned by Defendant. (Ivchenko Decl., Paragraph 3.)  

Defendant contends that he only visits the Lincoln Address quarterly and that it is not his usual place of business. (Id.)  Defendant alleges that he did not become aware of this case until October 1, 2023 when he went to the Lincoln Address and received notice of case management conference. (Id., Paragraph 4.)

Defendant contends that he should have been served at his residence, 12751 W. Millenium Dr., #426B, Playa Vista, CA 90094, where he lived for at a minimum between December 9, 2022 and the date of service, July 27, 2023. (Id. at Paragraphs 2, 3.)

Defendant also attaches Da Vinci Motor's Statement of Information on file with the California Secretary of State as Exhibit A to the Declaration. Defendant represents that his address for service of process on file with the Secretary of State is the 426B address listed above. (Id. at Paragraph 3.)

However, Exhibit A lists the address for service of process as 12751 W. Millenium Dr. 428NB, Playa Vista, CA 90094. This is an entirely different unit.  

Plaintiff ran reports to find a location at which to serve Defendant. The home address listed on that report was 12751 Millennium Apartment 42NB Los Angeles, CA 90094. (Blumenfeld Decl. Paragraph 3 and Exhibit 1.)

Plaintiff's registered California process server attempted service at this address five times. (Id. at Paragraph 4 and Exhibit 2.)

Attached at Exhibit 2 are affidavits of due diligence. The Court notes that these affidavits have a different case number, 23STCV14176. However, the Court will consider the affidavits since, as Defendant acknowledges, Plaintiff was attempting simultaneously to serve process on Defendant in both of these cases.

On June 24, 2023, the process server reported the address was a secured apartment building and that access could not be gained to the building. On June 27, 2023, the process server again reported that access could not be gained to the secure building. On July 3, 2023, the process server again reported that the building was secured and that service was not effectuated. On July 6, 2023, the process server reported that the security guard refused access to the building and stated that the leasing office must authorize access. On July 9, 2023, the leasing office provided access, but there was no response from the unit.

The report obtained by Plaintiff indicated that the address of Defendant's business, Da Vinci Motor, was the Lincoln Address.  (Id. at Paragraph 3 and Exhibit 1.)

As outlined above, service was effectuated at the Lincoln Address on July 27, 2023 on K. Arseny, Manager. 

Plaintiff provides an affidavit of due diligence from the 23STCV14176 case. (Id. at Exhibit 3.) Service in that case was also effectuated at the Lincoln Address on July 27, 2023 at 1:33 p.m. According to this affidavit of due diligence, K.Arsenyan, Manager was served. The description of K. Arsenyan is identical to that of K. Arseny. Both affidavits of due diligence were filed out by the same process server who effectuated service in both cases. 

Defendant testified that he does not know a K. Arseny and his business has never employed anyone by that name. (Defendant's Decl., Paragraph 8.) 

Code Civ. Proc., section 415.20 does not define “usual place of business.” but the associated Judicial Council commentary explains “[t]he term ‘usual place of business’ includes a defendant's customary place of employment as well as his own business enterprise.” (Judicial Council of Cal., com. to section 415.20, subd. (b)) The Judicial Council's comment is “highly persuasive evidence” of the Legislature's intent regarding the proper interpretation of subdivision (b). (Pasadena Medi–Center Associates v. Superior Court (1973) 9 Cal.3d 773, 778; Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1434–1435.)

Here, substitute service was effectuated at Plaintiff's own business. Therefore, the address meets the definition of “usual place of business” provided by Code Civ. Proc., section 415.20.  

Defendant moves under Code of Civil Procedure Section 473.5 claiming that service of the summons did not result in him having actual notice of the action in time to defend against it. A court may grant such a motion if the court finds that the motion was timely made and that any lack of actual notice was not caused by Plaintiff's avoidance of service or inexcusable neglect. 

Plaintiff contends that Defendant's failure to visit his business office more often constitutes inexcusable neglect. The Court disagrees on the facts presented here.

The motion is granted.

DATED: February 2, 2024

________________________________ 

Hon. Jill Feeney 

Judge of the Superior Court