Judge: John J. Kralik, Case: 22BBCV00407, Date: 2023-01-27 Tentative Ruling

Case Number: 22BBCV00407    Hearing Date: January 27, 2023    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Borden Business Properties, LLC (“Plaintiff”) filed an unlawful detainer complaint against Defendant Summit Medical Supply Corp. (“Defendant”) on June 2, 2022.  Plaintiff is the owner of the property located at 9313 Borden Ave., Sun Valley, CA 91352.  Plaintiff alleges that it entered into a written lease agreement with Defendant on July 7, 2016.  Plaintiff alleges that it served on Defendant a 3-day notice to pay rent or quit on May 12, 2022.  Plaintiff seeks possession of the premises, costs incurred in this proceeding, past due rent of $84,008.40, reasonable attorney’s fees, forfeiture of the agreement, and damages at the rate of $233.35 per day since May 13, 2022.

B.     Relevant Background and Motion on Calendar

On June 27, 2022, the default of Defendant and unknown occupants was entered.

On June 27, 2022, the default judgment of Defendant was entered in favor of Plaintiff for possession of the premises located at 9313 Borden Ave., Sun Valley, CA 91352.  Default judgment was entered by the clerk of the court.

On June 27, 2022, a Writ of Possession of Real Property was entered against Defendant (judgment debtor) for the subject premises. 

On December 30, 2022, Defendant filed a motion to set aside the clerk’s default and default judgment and for stay of the writ of possession.

On January 6, 2023, a Writ of Possession of Real Property was entered against Defendant (judgment debtor) for the subject premises. 

The Court is not in receipt of an opposition brief.

DISCUSSION

            Defendant moves to vacate the default and default judgment pursuant to CCP § 473.5, arguing that it was not in possession or, nor present at, the subject commercial property during the time relevant to the complaint and thus could not have been served at the location. 

            According to the proof of service of the summons (filed on June 23, 2022), Defendant was served by substituted service on June 8, 2022 at 11:23 a.m., by leaving the documents with John “Doe”, a person in charge of the building at 9313 Borden Ave., Sun Valley, CA 91352.  The documents were thereafter mailed on June 8, 2022.  (Defendant’s agent for service is process is Adam Delomonte.)  Service was effectuated by a registered process server.

            In support of the motion, Defendant provides the declaration of James M. Silva, who is Defendant’s attorney.  Mr. Silva states that he contacted Plaintiff’s counsel to inform Plaintiff that Defendant had not been served with the summons and was not in possession of the subject commercial property from June 1, 2021 to May 31, 2022.  (Silva Decl., ¶8.)  He states that he informed Plaintiff’s counsel that So-Cal Discount Medical Supply, Inc. had entered into a lease agreement for the subject property in January 2021 and that Defendant was not present at the subject commercial property at any time when service of the 3 Day Notice to Pay or Quit or the Summons were allegedly served.  (Id., ¶9.)  Mr. Silva states that he provided Plaintiff’s counsel with a copy of the commercial lease agreement between So-Cal Discount Medical Supply, Inc. and Plaintiff to show that Defendant was not in possession of the property.  (Id., ¶11, Ex. E [Commercial Lease Agreement between Plaintiff and So-Cal Discount Medical Supply, Inc.].) 

            Based on the evidence provided by Defendant, it appears that Plaintiff entered into a lease agreement with So-Cal Discount Medical Supply, Inc. on December 15, 2020 and that the lease term was for 5 years from December 15, 2020 to December 14, 2025.  (Silva Decl., Ex. E.)  The document is signed by Lynn Miller of Plaintiff and Adam Delomonte of So-Cal Discount Medical Supply, Inc.  As such, it appears that Defendant Summit Medical Supply Corp. is no longer in possession of the premises.  Mr. Silva also provides the Statement of Information for Defendant, which is separate and distinct from the Statement of Information for So-Cal Discount Medical Supply, Inc., and each entity has separate entity numbers.  (See Silva Decl., Ex. A [Defendant’s Statement of Information], Ex. B [So-Cal Discount Medical Supply, Inc. Statement of Information].)  While Adam Delomonte is the agent for service of process for both entities, Defendant is not the entity currently in possession of the premises as a new lease was entered between Plaintiff and So-Cal Discount Medical Supply, Inc.

            Thus, the motion to vacate the default and default judgment entered against Defendant Summit Medical Supply Corp. is granted.  The Court also notes that on January 9, 2023, an Order to Show Case re: Default Judgment came for hearing and the parties represented that they would agree to signing a stipulation to set aside the default and that a stipulation and order would be filed with the Court shortly.  In the event the Court is not in receipt of the stipulation and order prior to the date of the hearing, the Court issues this order granting this motion to set aside the default and default judgment.

CONCLUSION AND ORDER

            Defendant Summit Medical Supply Corp.’s motion to vacate the default and default judgment is granted.  

The request to stay the writ of possession is granted.

Defendant shall provide notice of this order.