Judge: Katherine Chilton, Case: 20STLC02682, Date: 2023-04-05 Tentative Ruling

If you desire to submit on the tentative ruling, you may do so by e-mailing Dept. 25 at the Spring Street Courthouse up until the morning of the motion hearing. The e-mail address is SSCdept25@lacourt.org. The heading on your e-mail should contain the case name, number, hearing date, and that you submit. The message should indicate your name, contact information, and the party you represent. Please note, the above e-mail address is to inform the court of your submission on the tentative ruling. All other inquiries will not receive a response.
Due to overcrowding concerns of COVID-19, all parties shall make every effort to schedule a remote appearance via LACourtConnect (https://my.lacourt.org/laccwelcome) for their next hearing. The parties shall register with LACourtConnect at least 2 hours prior to their scheduled hearing time.  **Please note we no longer use CourtCall**

Case Number: 20STLC02682     Hearing Date: April 5, 2023    Dept: 25

PROCEEDINGS:      MOTION TO SET ASIDE DEFAULT

MOVING PARTY:   Defendant Shachar Barbie

RESP. PARTY:         None

                                    MOTION TO SET ASIDE DEFAULT

                                              (CCP 473.5, CCP 418.10)

TENTATIVE RULING:

Defendants Maya Kim Kuriel, Yaacov Kuriel and Jee Kuriel’s Motion to Set Aside Default is CONTINUED TO May 8, 2023 at 10:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE.  At least 16 court days before the continued hearing, Defendants must file and serve supplemental papers as requested herein.  Failure to do so will result in the Motion being placed off calendar or denied.

SERVICE: 

[   ] Proof of Service Timely Filed (CRC, rule 3.1300)                 YES

[   ] Correct Address (CCP §§ 1013, 1013a)                                                 YES

[   ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     YES

OPPOSITION:          None filed                   [   ] Late                 [X] None

REPLY:                     None filed                   [   ] Late                 [X] None

ANALYSIS:

I.                Background

On March 18, 2020, Plaintiff Toby Lee Jones (“Plaintiff”) filed a complaint against Defendants Maya Kim Kuriel, Yaacov Kuriel and Jee Kuriel (“Defendants”) arising out of a motor vehicle accident between Plaintiff and Defendants.

On February 22, 2021, per Plaintiff’s request, the Court entered defaults against Defendants. 

On March 7, 2022, the Court dismissed the case without prejudice when neither party appeared for an OSC re: Entry of Default Judgment. On May 3, 2022, Plaintiff filed a Motion to Set Aside the Dismissal, which the Court granted in part on February 27, 2023 and reinstated the case.

On March 3, 2023, Plaintiffs filed the instant Motion to Set Aside Default (“Motion”).  No opposition has been filed.

II.              Legal Standard

Courts may set aside a default or default judgment due to lack of actual notice.  Code of Civil Procedure § 473.5 states:

“(a) 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.

(b) A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.

(c) Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.”

Additionally, “[a] summons is the process by which a court acquires personal jurisdiction over a defendant in a civil action.  The form of a summons is prescribed by law, and this form must be substantially observed.  [Citation.]  Service of a substantially defective summons does not confer jurisdiction over a party [citation] and will not support a default judgment.  [Citation.]”  (MJS Enterprises, Inc. v. Superior Court (1984) 153 Cal.App.3d 555, 557.)  “Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.’ [Citation.]”  (Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 858.)  The trial court may set aside any void judgment or order at any time. (Code Civ. Proc., § 473(d).)

Defendants also seek to set aside the default based on CCP Section 473(b) due to mistake, inadvertence, surprise or excusable neglect. 

III.            Discussion

Section 473.5 requires that Defendants’ Motion be filed with two years after the default was entered.  Defaults against Defendants were entered on February 22, 2021. This Motion was filed on March 3, 2023. Defendants need to address this issue and whether the time is tolled during the period when the case was dismissed.

Defendants seek to set aside the defaults, stating that service was not effectuated as Defendants were either no longer living at the address listed on the Proof of Service filed with the Court or never lived there.  (Mot. at p. 2.) 

Defendants’ Motion, however, fails to comply with some of the procedural requirements set forth by Code of Civil Procedure § 473.5.  The Motion is not accompanied by a Proposed Answer, nor does it include affidavits or declarations under oath from Defendants.  The Notice of Motion also fails to include the address for the court where the Motion will be heard –312 North Spring Street, Los Angeles, CA 90012.

Accordingly, the Court continues the hearing on the Motion to allow Defendants to file a corrected Notice of Motion with the Court’s proper address, as well as filing the appropriate proof in the form of declarations or affidavits. 

IV.           Conclusion & Order

Defendants Maya Kim Kuriel, Yaacov Kuriel and Jee Kuriel’s Motion to Vacate Default Judgment is CONTINUED TO MAY 8, 2023 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE.  At least 16 court days before the continued hearing, Defendants must file and serve supplemental papers as requested herein.  Failure to do so will result in the Motion being placed off calendar or denied.

Moving party to give notice.