Judge: Katherine Chilton, Case: 20STLC02682, Date: 2023-05-08 Tentative Ruling

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Case Number: 20STLC02682     Hearing Date: May 8, 2023    Dept: 25

PROCEEDINGS:      MOTION FOR ORDER SETTING ASIDE DEFAULT

MOVING PARTY:   Defendants Maya Kim Kuriel, Yaavoc Kuriel, and Jee Kuriel

RESP. PARTY:         Plaintiff Toby Lee Jones

MOTION TO SET ASIDE DEFAULT

(CCP §§ 473.5 and 473(b))

TENTATIVE RULING:

Defendants Maya Kim Kuriel, Yaacov Kuriel, and Jee Kuriel’s Motion for Order Setting Aside Default is GRANTED. Defendants are ordered to file their responsive pleading within ten (10) days of notice of this order.

SERVICE: 

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

[X] Correct Address (CCP §§ 1013, 1013a)                                                 OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     NO

OPPOSITION:          Filed on April 5, 2023                                     [X] Late                       [  ] None

REPLY:                     Filed on  April 14, 2023                                    [   ] Late                      [  ] 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, Defendants filed the instant Motion to Set Aside Default (“Motion”) seeking relief pursuant to Code of Civil Procedure §§ 473.5 and 473, subdivision (b). On April 5, 2023, Plaintiff filed an untimely opposition to the Motion

            At the initial April 5, 2023 hearing, the Court instructed to brief the Court as to whether the Motion was timely and whether the time to file the Motion  was tolled during the period when the case was dismissed. (4/5/23 Minute Order.) Additionally, the Court found that Defendants’ motion failed to comply with the procedural requirements set forth by Code of Civil Procedure § 473.5 had not provided sufficient notice as the Motion was filed only 8 court days before and served only 4 court days before that hearing. (Ibid.) For these reasons, the hearing was continued to May 8, 2023, and Defendants were instructed to file a their supplemental papers sixteen court days prior to the continued hearing. (Ibid.)

Defendants filed their reply papers on April 14, 2023.           

II.              Legal Standard

Courts may set aside a default or default judgment due to lack of actual notice. Code of Civil Procedure section 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.”  

“Section 473(b) provides for both discretionary and mandatory relief.  [Citation.]”  (Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.)  An application for relief under this section must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) In addition, an application for relief under this section “shall be accompanied by a copy of the answer or other pleading proposed to be filed herein, otherwise the application shall not be granted.” (Code Civ. Proc., § 473, subd. (b).) Relief under this section is mandatory when based on an attorney affidavit of fault; otherwise, it is discretionary. (Id.) When relief from default and default judgment is the attorney’s fault, the six-month period starts to run from the date of the entry of the default judgment. (Code Civ. Proc., § 473, sub. (b); Sugasawara v. Newland (1994) 27 Cal.App.4th 294, 295.)  

III.            Discussion

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 pp. 4-5.) Additionally, Defendants argue that the Court should relieve them of default pursuant to Code of Civil Procedure § 473, subdivision (b), and that Plaintiff’s counsel’s conduct violated California Attorney Guidelines of Civility and Professionalism for failing to notify Defendants’ insurance company of his intention to seek default. The Court shall address each argument in turn, but first, the Court shall determine whether Defendants’ motion is timely under the circumstances.

A.    Timeliness re: Seeking Relief under Code of Civil Procedure § 473.5

At the prior hearing on April 5, 2023, the Court specifically directed Defendants to brief the issue of whether the Motion was timely brought under Code of Civil Procedure § 473.5 and whether the time to file the Motion was tolled during the period when the case was dismissed. (4/5/23 Minute Order at p. 4.) In response to this directive, Defendants argue that, considering that a default judgment has not yet been entered against them, tolling is unnecessary because the two year deadline only starts to accrue after the entry of a default judgment. (Code Civ. Proc. § 473.5, subd. (a).) (Reply, pp. 2-3.)

The Court acknowledges that Defendants’ interpretation is a plain reading of the statute. However, the analysis is incomplete because it fails to address the alternative deadline set forth under Section 473.5. As provided under the statute, “[t]he 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.” (Code Civ. Proc. § 473.5, subd. (a) [emphasis added].) Thus, because the two year deadline is inapplicable in this regard, the Court must consider whether the 180 day deadline applies. Based on the evidence submitted, Plaintiff fails to present any evidence to suggest when Defendants were served with actual written notice that default had been entered against them. While Defendants’ counsel concedes that Defendants became aware of the request for entry of default through their insurance company on February 26, 2021, this is only reference to the request, not to the actual entries of default, which were entered on February 22, 2021. (Mot., Rickett Decl. ¶¶ 4-5.)  The next possible date that Defendants could have been served with the entries of default would have been when Plaintiff served his default judgment papers, which were ultimately rejected on November 29, 2021. Upon review of the proofs of service filed along with Plaintiff’s default judgment papers, it is clear that these papers were mailed to 2900 S Sepulveda Boulevard, Los Angeles, California. (See 11/29/21 Proofs of Service.) However, based on Defendants’ declarations, they were all residing in the state of Washington at this time. (Reply; Maya Kuriel Decl. ¶¶ 4-5; Yaacov Kuriel Decl. ¶¶ 4-5; Jee Kuriel Decl. ¶¶ 4-5.) The only other date that Defendants would have become aware of the entries of default was when Plaintiff served Defendants’ insurance company with notice of his motion for order vacating dismissal and to reinstate the Complaint on or around January 6, 2023. Because the Motion was filed and served within two months after Defendants’ insurance company was served with the notice, it is timely pursuant to Code of Civil Procedure § 473.5, subdivision (a).

Therefore, the Court finds that the instant motion is timely. 

B.    Relief under Code of Civil Procedure § 473.5

A court can grant “relief based upon a lack of actual notice under section 473.5… where a valid service of summons has not resulted in actual notice to a party in time to defend the action. (Tunis v. Barrow (1986) 184 Cal. App. 3d 1069, 1077–1078; § 473.5 subd. (a).) A party seeking relief under section 473.5 must provide an affidavit showing under oath that his or her lack of actual notice in time to defend was not caused by inexcusable neglect or avoidance of service. (Tunis v. Barrow, supra, 184 Cal. App. 3d at pp. 1077–1078; § 473.5 subd. (b).)” (Anastos v. Lee (2004) 118 Cal.App.4th 1314, 1319; see also Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180 [relief under Section 473.5 requires a declaration of no actual notice, no evasion of service, and showing of diligence]; Stiles v. Wallis (1983) 147 Cal.App.3d 1143, 1147-1148 [setting aside default on equitable grounds requires showing of meritorious defense, satisfactory excuse for not presenting defense sooner, and diligence upon learning of default].) 

Here, the proofs of service show that Defendants were served by substitute service with the summons and complaint at 2900 S Sepulveda Boulevard, Los Angeles, California on October 22, 2017 by a registered process server, and the documents were left with an unknown man. (See 7/10/20 Proofs of Service.) A proof of service containing a declaration from a registered process server invokes a rebuttable presumption of valid service that must be overcome by the party seeking to defeat service of process.  (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; see also Evid. Code § 647.)   “[I]f the court has acquired jurisdiction, i.e., summons has been served, but service of summons has not resulted in actual notice to a defendant, although the defendant has acquired actual knowledge of the action from another source, this does not preclude a defendant from seeking relief under section 473.5.” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 548.)  In this instance, the presumption of receipt has been sufficiently rebutted by the Defendants’ declarations stating that they resided in Washington at the time of service. (Bear Creek Master Assn. v. Edwards (2005) 130 Cal.App.4th 1470, 1486 [“presumption of receipt is rebutted upon testimony denying receipt.].) Even though Defendants made have received constructive notice of this action on or around February 26, 2022 through their insurance company, this is not dispositive because Section 473.5 unequivocally states that actual notice must have been effectuated, not merely constructive notice. Furthermore, the Court finds that procedural requirements set forth under Section 473.5 have been establish. (See Reply.) 

            Accordingly, because Defendants did not receive actual notice of this action through the service of the summons and complaint, the Court grants Defendants’ motion to set aside default.  In the interest of judicial economy, the Court declines to address the remaining arguments presented by the Motion.

IV.           Conclusion & Order

For the foregoing reasons, Defendants Maya Kim Kuriel, Yaacov Kuriel, and Jee Kuriel’s Motion for Order Setting Aside Default is GRANTED. Defendants are ordered to file their responsive pleading within ten (10) days of notice of this order.

Moving party is ordered to give notice.