Judge Kerry Bensinger, Case Number: 23STCV29197, Date: 2024-10-09 Tentative Ruling

This is a landlord-tenant dispute. On November 30, 2023, Plaintiffs Noemi Alegria and minors Joseph Rivera, Abraham Rivera, Amri Rivera and Johnny Picazo, by and through their guardian ad litem, Noemi Alegria (collectively, Plaintiffs) filed a Complaint against Defendants Cesar Rodriguez (Rodriguez) and Santiago Reyes (Reyes) for (1) Breach of Implied Warranty of Habitability (2) Breach of Statutory Warranty of Habitability, (3) Breach of the Covenant of Quiet Enjoyment, (4) Negligence, (5) Violation of Civil Code §1942.4, (6) Private Nuisance, (7) Violation of Tenant Anti-Harassment Ordinance, and (8) Violation of Unfair Competition Law (Bus. & Prof. C. §§ 17200-09). Plaintiffs were tenants in a property owned and managed by Defendants Rodriguez and Reyes.

On January 19, 2024, Plaintiffs filed a Proof of Service of Summons showing that Rodriguez was personally served with the Summons and Complaint on December 20, 2023.

On June 14, 2024, Rodriguez filed this Motion to Set Aside the Judgment and Any Default [CCP §§ 473(b), 473.5, 473(d), 128(a)(8), 86(b)3)]. Rodriguez is self-represented.

As a threshold issue, default and not a default judgment, has been entered against Rodriguez. Accordingly, the court determines only whether grounds exist to set aside the default.

Code of Civil Procedure section 473, subdivision (b) provides that a court may “relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”¿ In addition, a court must vacate a default or dismissal when a motion for relief under Section 473, subdivision (b) is filed timely and accompanied by an attorney’s sworn affidavit attesting to the attorney’s mistake, inadvertence, surprise or neglect “unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise or neglect.”¿ (Code Civ. Proc., § 473, subd. (b).)¿¿¿

The party or the legal representative must seek such relief “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”¿ (Code Civ. Proc., § 473, subd. (b); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“because more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable”]; People v. The North River Ins. Co. (2011) 200 Cal.App.4th 712, 721 [motion for relief under section 473 must be brought “within a reasonable time, in no case exceeding six months”].)¿¿¿

Additionally, 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.¿¿

Rodriguez seeks an order vacating the default on the following ground: “I did not receive the Summons and Complaint in this case at all or did not receive them in the legally required way. The documents were not handed to me in the legally required way. The complaint was left out in my garden.” (Rodriguez Decl., ¶ 2.) Rodriguez further states that he is “filing this Motion to Set Aside within a reasonable time and within the statutory period, if applicable.” (Rodriguez, Decl., ¶ 4.)

At bottom, Rodriguez challenges the court’s jurisdiction over Rodriguez because service of process was defective. However, “[t]he filing of a proof of service creates a rebuttable presumption that the service was proper. However, the presumption arises only if the proof of service complies with the applicable statutory requirements.” (Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.)

Here, Plaintiffs filed a Proof of Service of Summons and Declaration of process server, Dorreen Mallyon, on January 19, 2024. Ms. Mallyon, who is exempt from registration under Business and Professions Code section 22350(b), declares under penalty of perjury that she personally delivered the Summons and Complaint and other associated documents to Rodriguez at his home address of 7828 Crocker Street, Los Angeles, California 9003 at 7:35 a.m. on December 20, 2023. (Proof of Service of Summons, filed 1/19/24.) Rodriguez does not point out any ways in which the proof of service does not comply with the applicable statutory requirements. Rodriguez does not rebut the presumption that service was proper.

Even if Rodriguez had rebutted the presumption, procedural defects in Rodriguez’s motion prevent the court from setting aside the default. “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.” (Code Civ. Proc., § 473.5, subd. (b), emphasis added.) Here, Rodriguez does not attach a copy of any pleading proposed to be filed in the action.

Based on the foregoing, Defendant Cesar Rodriguez’s Motion to Set Aside the Judgment and Any Default [CCP §§ 473(b), 473.5, 473(d), 128(a)(8), 86(b)3)]. is DENIED.

Kerry Bensinger

Judge of the Superior Court