Judge John J. Kralik, Case EC068901 2022-12-30 Tentative Ruling

Plaintiff Cavalry SPV I, LLC, as assignee of Synchrony Bank fka GE Capital Retail Bank (“Plaintiff”) alleges that Synchrony Bank fka GE Capital Retail Bank issued a Lowe’s credit card account to Defendant Meri Penesyan (“Defendant”). Plaintiff alleges that it is a debt buyer and purchased the debt after charge-off. Plaintiff alleges that as of June 25, 2015, Defendant’s balance on the account was $28,809.43.

The complaint, filed August 14, 2016, alleges causes of action for: (1) account stated and (2) money lent.

On January 31, 2019, Plaintiff filed a Declaration of Non-Service stating that its process server had unsuccessfully attempted to serve Defendant at 1953 Erin Way, Glendale, CA 91206 from December 30, 2018 to January 23, 2019 over 7 occasions.

On March 6, 2019, Plaintiff applied to serve Defendant by publication. On April 9, 2019, the Court entered the Order for Publication, allowing Plaintiff to serve Defendant by publication in LA Weekly at least once for four consecutive weeks.

On July 29, 2019, the default judgment of Defendant was entered in the total amount of $29,926.67.

On November 28, 2022, Defendant filed a motion to set aside the default and default judgment.

Defendant moves to set aside the default and default judgment and for leave to file an answer to the complaint. Defendant moves on the grounds that she did not have actual notice of the action, the default and default judgment were entered without Defendant being properly served, and the judgment is void as a matter of law.[1] Defendant provides a copy of the proposed answer as Exhibit H to the motion.

In support of the motion, Defendant provides her declaration. She states that she was never personally served with the summons and complaint in this action. (Def.’s Decl., ¶2.) She states that her relevant address was and still is 350 N. Glendale Avenue #B181. (Id., ¶3.) Defendant states that at no time did she receive a copy of the summons and complaint in the mail or a Notice of Acknowledgement & Receipt in connection with this action at any address. (Id., ¶4.) Defendant states she only became aware of this action and the judgment on November 21, 2022, when she received a Notice of Levy. (Id., ¶5.)

In the complaint, Plaintiff alleges that Defendant is believed to reside at 350 N Glendale Ave, Ste. B, Glendale, CA 91206. (Compl., ¶9.) Exhibit A of the complaint includes the Lowe’s Credit Card Account information, showing that Defendant’s address is located at 350 N. Glendale Ave #B181 in Glendale. (Compl., Ex. A [Application at p.1].)

In contrast, the Declaration of Non Service indicates that service of the summons and complaint was attempted on Defendant at 1953 Erin Way in Glendale. (Mot., Ex. B.) In his Reasonable Due Diligence report, Paul Flynn (process server) indicated that service on Defendant was not completed on September 9, 2018 because, per resident at 1953 Erin Way, Defendant did not reside at the property. (Mot., Ex. C [Decl. in Support of Pl.’s App. for Publication of Summons on Defendant at Ex. 2].) The proof of service shows that service was not attempted at 350 N. Glendale Ave #B181. Further, Defendant argues that after Plaintiff attempted to serve Defendant via publication, Plaintiff did not make service of the summons and complaint by mail.

The Court’s order directed Plaintiff to make service by publication and to mail the summons and complaint to Defendant’s address before the expiration of the time prescribed for publication of the summons. (Mot., Ex. F [4/9/19 Order for Publication]; see also CCP § 415.50(b).) The proof of publication filed on May 17, 2019 only makes statements under the penalty of perjury that notice of the action was published in LA Weekly and an excerpt of the notice. (Mot., Ex. G.) However, as indicated by Defendant, there is no proof of service showing that the summons and complaint were mailed to Defendant.

Based on these facts, it does not appear that service was properly effectuated on Defendant because Plaintiff did not attempt service at Defendant’s address as indicated in the complaint or the credit application, Defendant stated under the penalty of perjury that she has resided at 350 N. Glendale Avenue #B181 for all relevant times to the present, and service by publication was not completed as Plaintiff did not mail the documents to Defendant.

Defendant Meri Penesyan’s motion to set aside the default and default judgment is granted.

A Case Management Conference is set on March 2, 2023, at 8:30 a.m. in Department B.

[1] To the extent that Defendant is moving pursuant to CCP § 473.5, such relief is not appropriate as the time to bring this motion would have passed. Default judgment was entered on July 29, 2019 and the motion was filed on November 28, 2022, which is over 2 years from the entry of default judgment. (See CCP § 473.5(a).)

Superior Court of California

County of Los Angeles

Department B