Judge: John J. Kralik, Case: 22BBCV00618, Date: 2023-08-25 Tentative Ruling

Case Number: 22BBCV00618    Hearing Date: August 25, 2023    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Cit Bank, N.A. (“Plaintiff”) alleges that on July 13, 2018, Defendant Samvel Bandikyan aka Bandikyan Samvel, an individual dba Best Way Delivery Services (“Samvel Bandikyan”) entered into a written Master Equipment Finance Agreement #ME01730631 (“Master EFA”) and Equipment Schedule No. DCC-1441293 (“Schedule”) with Plaintiff for the purchase of equipment to Defendant.  Plaintiff also alleges that to induce Plaintiff to enter the agreement, Samvel Bandikyan and Defendant Marine Bandikyan signed a Personal Guaranty.  Plaintiff alleges that Defendants breached the Master EFA, Schedule, and Personal Guaranty on September 15, 2019 by failing to make monthly payments when due.  It alleges that $80,800.40 is due and owing.

The complaint, filed on August 29, 2022, alleges causes of action for: (1) breach of written agreement; (2) breach of guaranty; (3) open book account; and (4) account stated.

On October 14, 2022, Plaintiff filed a Notice of Plaintiff’s Name Change.  Plaintiff states that future pleadings will refer to Plaintiff as “First-Citizens Bank & Trust Company.” 

B.     Relevant Background

On October 10, 2022, the default of Marine Bandikyan was entered.

On October 19, 2022, the default of Samvel Bandikyan was entered.   

On February 23, 2023, the default judgment of Defendant was entered. 

C.     Motions on Calendar

On March 21, 2023, Defendants each filed a motion to set aside the default and default judgment entered against them.  They are self-represented litigants.

On July 11, 2023, Plaintiff filed opposition briefs.

DISCUSSION

Defendants move to set aside the default and default judgment and to quash the service of the summons due to lack of jurisdiction.  They move pursuant to CCP §§ 473(b), 473(d), and 473.5, and Civil Code, § 1788.61.

A.    CCP § 473.5

Defendants argue that they are entitled to relief under CCP § 473.5 because they received no actual notice of the action in time to defend the motion and the default/default judgment was not caused by their avoidance of service or inexcusable neglect. 

The proof of service on Samvel Bandikyan (filed September 19, 2022) states that he was served by substituted service at 6637 Bellaire Avenue, North Hollywood, CA 91606 by serving Marine Bandikyan (co-occupant) at their home on September 8, 2022, and the documents were thereafter served by mail on September 9, 2022.  Service was effectuated by a registered process server.  The proof of service of Marine Bandikyan (filed September 19, 2022) states that she was served by personal service at her home on September 8, 2022. 

Defendants provide their declarations in support of the motions:

·         Samvel Bandikyan states in his declaration that the proof of service fails to provide a physical description of Marine Bandikyan and service was effectuated by a private individual.  (Samvel Bandikyan Decl., ¶¶4-5.)  He states that he does not live or work at the address he was purportedly served, the address had never been his mailing address, and the mailing address was fraudulently obtained in Defendants’ name by tenants in 2018.  (Id., ¶6.)  He states he first learned about the lawsuit on January 15, 2023 when he received a notice by an advertising law firm to retain services on a complaint filed against him.  (Id., ¶7.) He states that he was not evading service, so his lack of actual notice was not the result of evasion of service.  (Id.) 

·         Marine Bandikyan states that she was not personally served because she was not in California in September 2022.  (Marine Bandikyan Decl., ¶6.)  She states that she had many occasions of identity theft committed against her for the property she rents out.  (Id.)  She states that she learned about the complaint on March 16, 2023 when she received a notice by a lienholder of a property of hers with a new garnishment debtor against her.  (Id.)  She states that she was not evading service, so her lack of actual notice was not the result of evasion of service.  (Id., ¶7.) 

Although Defendants argue that no physical description of Marine Bandikyan was provided in the proofs of service, they have not cited to any law showing that this is a requirement for proofs of service. 

Next, they argue that they do not reside nor work at the 6637 Bellaire Avenue, North Hollywood, CA 91606 address.  However, the complaint includes Exhibits 1 and 2, which are the Master EFA Agreement, Personal Guaranty, and Schedule entered by Samvel Bandikyan and Marine Bandikyan.  In these documents, Defendants state that their address is 6637 Bellaire Avenue, North Hollywood, CA 91606.  (Compl., Ex. 1.)  Plaintiff also provides Samvel Bandikyan’s driver’s license (which expired on October 3, 2018) and Marine Bandikyan’s driver’s license (which expired on November 6, 2019), showing that their address was located at 6637 Bellaire Ave.  (Opp. re Samvel Bandikyan at Ex. 2; Opp. re Marine Bandikyan at Ex. 3.)  Although Defendants argue that they do not reside or work at this address, they have not provided any evidence showing that they did not work or reside at that address in September 2022 when service was effectuated.  Rather, the agreements and documents relevant to this action show that Defendants represented their address was 6637 Bellaire Avenue.  (The Court notes that the caption of their motion papers states that Defendants’ address is 13027 Victory Blvd., #515, North Hollywood, CA 91606.  However, Defendants have not stated when they moved to this property.)

With his declaration, Samvel Bandikyan provides a Federal Trade Commission Identity Theft Report with his statement that he has been the victim of identity theft in December 2022 and that he discovered the theft in August and November 2022.  (See Samvel Bandikyan Decl., Ex. 2.)  His claims of identity theft do not include any showing that he was a victim of identity theft for the account with Plaintiff.  He also provides a City of Los Angeles Office of Finance – LATAX document dated September 7, 2016.  (Id., Ex. 4.)  It is unclear what the purpose of this document is.  At the bottom of the second page of Exhibit 4, an account is listed with the name “Mariam Bandikyan” with an address listed at 12346 Lemay Street #6, North Hollywood, CA 91606, but neither Samvel nor Marine Badikyan are listed in this document.  Finally, he provides a copy of a DMV receipt for application for ID renewal, showing that his address is 13027 Victory Blvd (no unit number), N Hollywood, CA 91606.  However, the DMV document is dated March 21, 2023 and does not prove whether he did or did not reside at 6637 Bellaire Avenue at the time of service. 

The only exhibits Marine Bandikyan provides are her proposed answer, the proof of service, and the Notice of Levy – under writ of execution (garnishment) showing that the Notice of Levy was mailed to her on March 15, 2023.  (The Court cannot ascertain whether this is the full document.  Marine Bandikyan only provides one page of this document and, thus, her address is not provided.)  Although Marine Bandikyan states that she was not in California in September 2022, she has not provided any documentation showing she was not present in California or at the 6637 Bellaire Avenue address at the time of service.  Further, she has not provided any documents supporting her declaration statement that she was the victim of identity theft based on the properties she rents out.  As stated above, the only claim of identity theft was made by Samvel Bandikyan.  

Under Evidence Code § 647, the return of a registered process server upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.  Accordingly, Plaintiff’s proof of service establishes a presumption, affecting the burden of producing evidence, that Defendants were served with a summons and complaint through personal and/or substituted service of the documents.  Service was effectuated by a registered process server.  The process server, Ihab Anis, also provides his declaration in support of the opposition, wherein he provides the physical description of Marine Bandikyan and that she identified herself as Marine Bandikyan at the time of service.  (Anis Decl., ¶¶3-5.)  While Defendants have made statements that they were not properly served at the correct address, they have not provided any documentary evidence showing that they did not reside at the 6637 Bellaire Avenue address at the time of service or that they were not properly served.

Thus, the motions to vacate the defaults and default judgment pursuant to CCP § 473.5 are denied. 

B.     CCP § 473(b)

Defendants argue that relief is proper under CCP § 473(b) based on inadvertence, surprise, or excusable neglect. 

Defendants provide recitation of the law, but they do not provide any arguments showing how the default and default judgment taken against them was through their mistake, inadvertence, surprise, or excusable neglect.  (See Mot. at pp. 3-4.)   In their declarations, Defendants state that their failure to respond was the result of inadvertence, surprise, mistake, or excusable neglect or lack of notice because they were completely unaware that there had been a complaint filed against them or judgment entered against them until they received an advertisement from a law firm.  (Samvel Bandikyan Decl., ¶8; Marine Bandikyan Decl., ¶8.) 

However, as discussed above, Defendants have not shown that service was improperly effectuated against them.  As such, the motions pursuant to CCP § 473(b) are denied.

C.     CCP § 47(d)

Defendants argue that the motions should be granted because the defaults and default judgment are void because the summons and complaint were never validly served on Defendants, and they lacked actual notice of the lawsuit. 

For the same reasons discussed above regarding CCP § 473.5, the Court denies the motion pursuant to CCP § 473(d). 

D.    Civil Code, § 1788.61

Defendants argue that the Court should grant the motions pursuant to Civil Code, § 1788.61. 

Section 1788.61 states in relevant part:

(a)(1) Notwithstanding Section 473.5 of the Code of Civil Procedure, if service of a summons has not resulted in actual notice to a person in time to defend an action brought by a debt buyer and a default or default judgment has been entered against the person in the action, the person may serve and file a notice of motion and motion to set aside the default or default judgment and for leave to defend the action.

(2) Except as provided in paragraph (3), the notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of:

(A) Six years after entry of the default or default judgment against the person.

(B) One hundred eighty days of the first actual notice of the action.

(3)(A) Notwithstanding paragraph (2), in the case of identity theft or mistaken identity, the notice of motion shall be served and filed within a reasonable time, but in no event exceeding 180 days of the first actual notice of the action.

(B)(i) In the case of identity theft, the person alleging that they are a victim of identity theft shall provide the court with either a copy of a Federal Trade Commission identity theft report or a copy of a police report filed by the person alleging that they are the victim of an identity theft crime, including, but not limited to, a violation of Section 530.5 of the Penal Code, for the specific debt associated with the judgment.

(ii) In the case of mistaken identity, the moving party shall provide relevant information or documentation to support the claim that they are not the party named in the judgment or is not the person who incurred or owes the debt.

(Civ. Code, § 1788.61(a).) 

The standard under section 1788.61 is essentially the same as CCP § 473.5, but section 1788.61 provides for an extended time frame to bring a motion to set aside the default and default judgment.  Preliminarily, as discussed above, only Samvel Bandikyan filed an FTC Identity Theft Report, but Marine Bandikyan did not, such that this section would not apply to Marine Bandikyan.  Next, Plaintiff has not opposed the motions as untimely, such that the effect of this section does not apply.  In addition, Defendants have not provided any relevant information or documentation to support their claim that they are not the party named in the default judgment or that they are not the parties who incurred or owe the debt. 

As such, the motions pursuant to Civil Code, § 1788.61 are denied. 

E.     Consumer Debt

Defendants also argue that the Court should set aside the default and default judgment as void because this is a consumer credit card debt but there has not been no declaration of venue filed and the complaint is not verified. 

            Other than their conclusory argument, Defendants do not provide any support for their argument that this action involves a consumer debt.  The Master EFA Agreement, Personal Guaranty, and Schedule do not identify the transaction as a consumer debt.  Rather, the Master EFA Agreement identifies Samvel Bandikyan as a “customer” who is borrowing funds against the equipment listed in the Schedule as a 2014 Freightliner Cascadia. 

            Thus, the motions on this basis are denied.

F.      Remaining Issues

In their motions to vacate, Defendants also move to quash service of the summons.  However, the Court denies this request as Defendants did not separately file a motion to quash the service of the summons.  Further, had the Court grants the motions to vacate, Defendants would have been participating in the action as they filed proposed answers.  Finally, as discussed above, Defendants have not shown that they were improperly served with the summons and complaint.

Lastly, Samvel Bandikyan filed an answer on January 25, 2023.  However, Samvel Bandikyan’s answer was improperly accepted by the clerk’s office as Samvel Bandikyan’s default had already been entered on October 19, 2022.  As such, Samvel Bandikyan’s answer that was improperly filed on January 25, 2023 will hereby be stricken. 

CONCLUSION AND ORDER

            Defendants Samvel and Marine Bandikyan’s motions to set aside the default and default judgment are denied. 

            Defendant Samvel Bandikyan’s answer filed on January 25, 2023 shall be stricken as it was filed after his default was already entered on October 19, 2022. 

            Defendants shall provide notice of this order.