Judge: John J. Kralik, Case: 23BBCV00925, Date: 2024-06-07 Tentative Ruling
Case Number: 23BBCV00925 Hearing Date: June 7, 2024 Dept: NCB
North
Central District
|
sean varon, Plaintiff, v. elene arutinyan, Defendant. |
Case
No.: 23BBCV00925 Hearing Date: June 7, 2024 [TENTATIVE]
order RE: motion for orders setting aside default and permitting the filing
of a responsive pleading |
BACKGROUND
A.
Allegations
Plaintiff Sean Varon (“Plaintiff”) alleges
that on August 31, 2022, he was involved in a motor vehicle accident with
Defendant Elene Arutinyan (“Defendant”).
Plaintiff alleges that Defendant rear-ended his vehicle, such that he
was injured as a result of the incident.
The complaint, filed on April 27, 2023,
alleges causes of action for: (1) motor vehicle; and (2) general
negligence.
B.
Relevant Background and Motion on Calendar
On December 27, 2023, the default of
Defendant was entered.
On April 17, 2024, Defendant filed a
motion to set aside the entry of default.
On May 3, 2024, Plaintiff filed an opposition
brief.
On May 23, 2024, Defendant filed a reply
brief.
DISCUSSION
Defendant
moves to set aside entry of default pursuant to CCP § 473(b). Defendant argues that she was never properly
served with the summons and complaint, such that her failure to timely file an
answer was due to mistake, surprise, inadvertence, and/or excusable
neglect. A copy of the proposed answer
is attached as Exhibit D.
On
June 23, 2023, Plaintiff filed a proof of service of the summons showing that
Defendant had been served by substituted service on June 22, 2023 at
Defendant’s home at 932 N. Sierra Bonita Ave., Suite #1, West Hollywood, CA
90046, and that the documents were thereafter mailed. No declaration of diligence was attached to
this first proof of service.
On November 21,
2023, Plaintiff filed the amended proof of service of the summons, which states
that Defendant was personally served on November 20, 2023 at 9:47 a.m. at 4657
Coldwater Canyon Ave., Studio City, CA 91604.
Service was effectuated by Omri Bar-Tal, a registered California process
server.
Defendant
provides her declaration in support of the motion. Defendant states that 4657 Coldwater Canyon
Ave. address is an apartment building and she was not personally served with
the summons and complaint on November 20, 2023 or at any time or location. (Def. Decl., ¶3.) She states that she only found out about the
proof of service when she spoke with Cindy Chan, the attorney retained by her
insurance company State Farm Mutual Automobile Insurance Company. (Id.)
She states that she had been advised by the State Farm representative
that if she was served with the summons and complaint, to report the service to
State Farm; however, she states she was not personally served with the summons
and complaint or else she would have reported the service to State Farm. (Id., ¶4.) It bears noting that Defendant’s
declaration is a bare and categorical denial of the service. She does not
provide any information indicating that she does not have a connection to this
address or that she was not normally present there.
Defense
counsel Cindy Chan also provides her declaration. Ms. Chan states that a review of the proof of
service shows that it fails to state at which apartment number the purported
service occurred. (Chan Decl., ¶3.) This is not a persuasive point, as the process
server indicates the Ms. Arutinyan was served in her car outside the apartment
building. Ms. Chin states that Plaintiff’s request for entry of default
paperwork also shows that Defendant was served at 4657 Coldwater Canyon Ave.,
but there is no apartment number. (Id.,
¶4, Ex. C.) This is a more important
point, because the service of this document in that manner means it is unlikely
to have reached Ms. Arutinyan through the mail. Ms. Chan reveals that she was
only consulted on this matter in March 2024, but does not reveal what led to
her being retained by Defendant’s insurer.
In
response, Plaintiff’s counsel argues that she advised Defendant’s adjuster via
email on August 15, 2023 of the existence of the lawsuit and that Defendant had
been subserved on June 22, 2023, and was notified on August 29, 2023 that
Defendant would be in default if an answer was not provided. (Opp., Exs. D-E [emails].) Plaintiff’s counsel argues that after
Defendant failed to answer the complaint by September 2023, Plaintiff realized
that in order to obtain a default, Defendant had to be personally served with a
Statement of Damages. As such,
Plaintiff’s counsel retained Mr. Bar-Tal to personally serve Defendant.
In his
declaration, Mr. Bar-Tal states that he obtained a picture of Defendant from
Plaintiff’s counsel so that he could recognize her. (Bar-Tal Decl., ¶7.) He states that on October 30, 2023, he
contacted a private investigator, who provided him with a different address for
Defendant. (Id., ¶8, Ex. 4.) He states that he staked out Defendant’s
vehicle, which was near 4657 Coldwater Canyon Ave., and attaches a picture of
the parked vehicle. (Id., ¶9, Ex.
5.) He states that on November 20, 2023,
at approximately 9:47 a.m., he saw Defendant approach her vehicle and pulled up
next to her car. (Id., ¶10.) He states that he asked her if she was Elene
Arutinyan, which she confirmed, and he then proceeded to hand her the summons,
complaint, statement of damages, and other documents. (Id., ¶10.)
Although Plaintiff
argues that his counsel served Defendant by substituted service on June 22,
2023, counsel also concedes that default could not have been properly entered
based on the June 23, 2023 proof of service due to failure to serve the
Statement of Damages. (The Court notes
that the request for entry of default was denied on September 5, 2023 for
Plaintiff’s failure to include a declaration of diligence with the proof of
service.) The Statement of Damages was
not served until November 20, 2023. Thus,
default could only be taken once the November 21, 2023 proof of service was
filed.
In addition, as
pointed out by Defendant, the December 27, 2023 request for entry of default
(CIV-100 form) states that Defendant was mailed a copy of the form at 4657
Coldwater Canyon Ave., Studio City, CA 91604.
Plaintiff acknowledges in the opposition papers that this address leads
to an apartment building. However,
Plaintiff did not serve Defendant with a copy of the request for entry of
default at a valid address as no unit number for the apartment complex was
provided, and it must have been assumed that this document would not reach the
Defendant in the ordinary course.
Plaintiff also argues
that his counsel provided two separate notices to Defendant’s adjuster about
the lawsuit and impending default on August 15, 2023 and August 29, 2023. However, an email notifying an insurance
adjuster about the lawsuit does not amount to proper service of the summons and
complaint on Defendant, and thus will not be considered notice of the lawsuit
to Defendant. With respect to the August
29, 2023 email to Defendant’s adjuster regarding the impending default, as
discussed above, Plaintiff would not have been able to obtain a default against
Defendant as the service was not yet proper, and Plaintiff’s counsel admits to
knowing of that defect. The August 2023 notifications by Plaintiff’s counsel to
Defendant’s adjuster predated the personal service that occurred on November
20, 2023 and thus will not be considered. While it would have been courteous
for the insurer to respond based on this earlier service, it was entitled to
take the risk that the service was defective and that a court would catch that
before entering default.
Although no
default was entered in connection with the June 23, 2023 proof of service or
the attempted September 5, 2023 request for entry of default, default was
eventually entered based on the November 21, 2023 proof of service and the
December 27, 2023 request for entry of default paperwork. Here, it must be pointed out that Plaintiff’s
counsel did not notify the adjuster or threaten to take a default with respect
to this service, which was, admittedly, the first effective service on
Defendant. Instead, Plaintiff moved forward promptly to take a default without
further communicating with the insurers that Plaintiff’s counsel knew were obligated
to defend Defendant.
Neither Plaintiff,
nor Defendant, nor Defendant’s insurers have covered themselves in glory here.
First, and most
troubling, it appears that Defendant’s denial of the personal service upon her
on November 20, 2023, was a false statement placed before the Court with the
intent to influence the Court’s decision. Mr. Bar-Tal’s very specific evidence
and rebuttal with respect to service has not been challenged in any way by a
further statement or evidence from Defendant. While this is some indication
that defense counsel found that Ms. Arutinyan’s testimony was no longer
defensible, Defendant’s counsel has not removed Defendant’s original false
declaration from the Court’s consideration. The Court concludes that Defendant
was in fact served on November 20, 2023, and that her denial is false.
Second, even
though the initial service upon Defendant was not sufficient to support an
entry of default, the insistence by Defendant’s insurers that the matter be
subject to further expense when they intended to defend Defendant in any event seems
like a needless waste of resources, especially in such a simple matter. Defendant’s
identity as the owner of the car was established, and nothing, other than the
waste of time, could have been accomplished by requiring further service. While
they were within their rights to do so, they took a risk that the clerks would
not recognize a defect in service. As it turns out, it was not a reasonable
risk to take.
Yet Plaintiff’s
counsel is not blameless for the present situation either. Counsel was aware
that the first service upon Defendant was insufficient to obtain a default
judgment, and therefore further service was required. Yet she threatened to go
forward with a default based on insufficient service. (Grimes Decl., Ex. E.)
When the second service occurred, Plaintiff’s counsel seemed more interested in
obtaining a default than providing notice, announcing to her process server
that he should “do it extremely proper because I need to take her Default!!” (Bar-Tal
Decl., Ex. 2 [email].) Once the matter was served, Plaintiff’s counsel did not
further communicate, but went straight to the default option without further
notifying the insurer, hoping that Defendant would continue to act
irresponsibly. Further, the request for entry of default was not properly served
and was served in a manner that increased the chance that it would not be
received.
The policy of the
law strongly favors a hearing on the merits, which supports granting this
motion. (Thompson v. Sutton (1942) 50 Cal.App.2d 272, 276.) Here, there is no significant prejudice to
the Plaintiff. The matter is not far along. A default has been entered, but no
default judgment. Plaintiff’s damage request consists predominantly of a
request for non-economic damages much greater than any actual medical expenses.
Most plaintiffs’ attorneys believe that
a jury will be more susceptible to such an argument that a judge considering a
default. Finally, the request for entry of default pursuant to which a default
was entered was not properly served. The disclosure of this underlying problem
might alone have forced the Court to set aside the default. For these reasons, the
Court will set aside the default entered against Defendant. The Court will
impose the costs of service, $1,390, upon Defendant. (See CCP § 473(c)(1).)
CONCLUSION AND
ORDER
Defendant Elene Arutinyan’s motion to set
aside the default is granted. Defendant
is ordered to answer and to pay the costs of service, $1,390, to Plaintiff.
Defendant shall give notice of
this order.
DATED: June 7,
2024 ___________________________
John
Kralik
Judge
of the Superior Court