Judge: Latrice A. G. Byrdsong, Case: 23STLC06451, Date: 2024-05-21 Tentative Ruling
*** Please Note that the Judicial Officer Presiding in Department 25 is Commissioner Latrice A. G. Byrdsong ***
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.
Case Number: 23STLC06451 Hearing Date: May 21, 2024 Dept: 25
Hearing Date: Tuesday, May 21, 2024
Case Name: AUSHEVA
v. NORTHLAND THEA, LLC, et al.
Case No.: 23STLC06451
Motion: to Set Aside/Vacate Default
Entered Against the Defendants on 11/29/2023
Moving Party: Defendants
Northland Thea, LLC, et al.
Responding Party: Plaintiff Svetlana Ausheva
Notice: OK
Recommended Ruling: Defendants’ Motion to Set
Aside/Vacate Default Entered Against the Defendants on 11/29/2023 is GRANTED.
The Non-Jury Trial scheduled for 04/07/2025
at 8:30 a.m. in Department 25 of the Spring Street Courthouse, remains on
calendar as currently scheduled.
Parties must comply
with the trial requirements as set forth in the court's Third Amended Standing
Order for Limited Civil Cases (effective February 24, 2020).
All trial documents
are to be electronically filed at least ten (10) days prior to the trial date.
Parties should be
prepared to submit a JOINT Trial Readiness Binder / Exhibit Binder, and to
personally appear on the date of trial.
BACKGROUND
On October 9, 2023,
Plaintiff Svetlana Ausheva (“Plaintiff”), filed a Complaint against Defendants
Northland Thea, LLC; Northland Thea Portfolio, LLC; Northland Thea Ventures,
LLC; Northland Thea IV, LLC; Northland Thea V, LLC (“Defendants”); and DOES 1
through 10, inclusive for: (1) Breach of Contract/Lease; (2) Fraudulent
Misrepresentation; and (3) Breach of Implied Warranty of Habitability.
On November 29, 2023, this Court entered default against
Defendants.
On April 19, 2024, Defendants filed the instant Motion to
Set Aside/Vacate Default. On May 6, 2024, Plaintiff filed an opposition. On May
14, 2024, Defendants filed a reply.
MOVING PARTY
POSITION
Defendants
move for an order granting relief from default entered on November 29, 2023.
The motion is made on the grounds that the Summons and Complaint were never
served on Defendants. Thus, Defendants argue the default entered against them
was void. Specifically, Defendants argue any purported service of process was
defective and not served on their registered agent. Defendants further argue
relief is justified in this case because the proofs of service filed by
Plaintiff were false or fraudulent. Lastly, Defendants contend Plaintiff cannot
meet her burden to prove effective service or that prejudice or injustice would
result based on her attorney’s own misconduct.
OPPOSITION
In
Opposition, Plaintiff argues Defendants were served with the Summons and
Complaint at the agent’s address set forth in the Lease between the parties in
accordance with Civil Code section 1962, subdivision (a)(I). Furthermore,
Plaintiff contends Defendants were aware of the Complaint before default was
taken. Moreover, Plaintiff contends the picture exhibits attached to the
declaration of Natalie Estrada have no factual foundation or authentication to
prove she was not served with anything. Finally, Plaintiff asserts Defendants
waited nearly five months before seeking relief from the default when their
counsel became aware of the Complaint at minimum, on November 20, 2023.
REPLY
In
Reply, Defendants argue Ms. Estrada’s declares under penalty of perjury that
she was not served, that the proofs of service misstate her hair colors, age,
and height, and she provided authenticated photographs to support her sworn
declaration. Defendants further argue Plaintiff failed to submit any evidence
contradicting Ms. Estrada’s declaration to show service was effectuated
according to statutory requirements such as declaration from the process
server, photograph of the person served, signature of the person who accepted
service, or a mail receipt. Moreover, Defendants contend Plaintiff only submits
an unauthenticated copy of a lease agreement. Additionally, Defendants contend
California public policy strongly favors granting relief, especially when
Plaintiff’s counsel failed to comply with ethical and statutory policy
requirements before seeking default. Defendants also assert they sought relief
from default after attempting to meet and confer with Plaintiff’s counsel and
not obtaining a definitive answer that Plaintiff would not stipulate to set
aside the default until February 29, 2024. Last, Defendants assert the motion
was supposed to be filed in March 2024 but others at Northland had to be
involved and brought up to speed on the matter after Defense counsel’s direct
contact at Northland left the company.
ANALYSIS
I. Motion to Set Aside/Vacate Default
A.
Evidentiary Objections
In
support of her opposition, Plaintiff submits Exhibits 1 through 3. Defendants
object to the exhibits on the grounds of Evidence Code sections 1401 and 1402.
The Court rules on the objections as follows:
Overruled: None
Sustained: Exhibits 1-3
B.
Legal Standard
Pursuant
the Code of Civil Procedure section 473, subdivision (b), 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 Code of Civil Procedure,
Section 473(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”]). “The six-month limit is
mandatory; a court has no authority to grant relief under section 473,
subdivision (b), unless an application is made within the six-month
period.” (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th
333, 340, citations omitted.)
Pursuant
the Code of Civil Procedure section 473.5, subdivision (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.” (Code Civ. Proc.,
§ 473.5, subd. (a).)
C. Discussion
As a preliminary matter,
the Court notes that Plaintiff attached Exhibits 1 through 3 to her opposition.
These Exhibits have not been properly authenticated by Plaintiff such as the
filing of a declaration by Plaintiff or Plaintiff’s counsel attesting to their
authenticity. Plaintiff also fails to authenticate or lay a foundation for
these Exhibits in the opposition. Therefore, these Exhibits were not considered
in ruling on the instant motion.
Corporation Code section
17701.16, subdivision (b) states in pertinent part, “[p]ersonal service of a
copy of any process against the limited liability company or the foreign
limited liability company by delivery (1) to any individual designated by it as
agent, or (2) if the designated agent is a corporation, to any person named in
the latest certificate of the corporate agent filed pursuant to Section 1505 at
the office of the corporate agent, shall constitute valid service on the
limited liability company or the foreign limited liability company. No change
in the address of the agent for service of process or appointment of a new
agent for service of process shall be effective until an amendment to the
statement described in Section 17701.14 is filed….” (Corp. Code, § 17701.16,
subd. (b).)
Civil Code section 1962, subdivision (a)(1) states in relevant part,
“[a]ny owner of a dwelling structure specified in Section 1961 or a party
signing a rental agreement or lease on behalf of the owner shall do all of the
following: (1) Disclose therein the name, telephone number, and usual street
address at which personal service may be effected of each person who is: (A)
Authorized to manage the premises…[or] (B) An owner of the premises or a person
who is authorized to act for and on behalf of the owner for the purpose of
service of process and for the purpose of receiving and receipting for all
notices and demands.” (Civ. Code, § 1962, subd. (a)(1).)
Here, the instant motion
is timely because it was filed within six (6) months after default was entered
against Defendants. Furthermore, Defendants submitted evidence demonstrating
that CSC – Lawyers Incorporating Service is their Agent for Service of Process
in accordance with Corporations Code section 17701.16, subdivision (b).
Although Plaintiff contends that THEA at Metropolis is the agent for service of
process for Defendants in accordance with Civil Code section 1962, subdivision
(a)(1), this code section requires owners and /or their managers to disclose to
tenants where they are to send rent payments so as to avoid notice and demands such
as notice to vacate, notice of nonpayment of rent, demand for payment of rent,
not for service of a lawsuit on the owner or manager of the premises. (Group
XIII Properties LP v. Stockman (2022) 85 Cal.App.5th Supp. 1, 11-14.)
Similarly, Defendants submitted the declaration of Leasing Consultant, Natalyt
Estrada, for Greystar, who is the property management company for THEA at
Metropolis indicating that she is not authorized to receive a Summons and
Complaint on behalf of Defendants. (Estrada Decl. ¶¶ 1-3, 7.) Moreover, Ms.
Estrada states that she has never been served with a Summons and Complaint for
this action by anyone and does not match the physical description listed in the
proof of service filed by Plaintiff in this matter. (Id., ¶¶ 8-10,
12-15, Ex. A.) By contrast, Plaintiff submits no admissible evidence to support
that Darrell Wilmore and Chris Daves are agents for service of process on
behalf of Defendants. Likewise, Plaintiff provides no evidence to support that
Ms. Estrada was in fact the person who was given the Summons and Complaint on
behalf of Defendants. Finally, Plaintiff presents no admissible evidence that
Defendants were otherwise on notice of the action prior to default being
entered.
Therefore, the Court finds
that Defendants have shown that they were not properly served with service of
process in this action prior to default being entered against them.
II. Conclusion
Accordingly, Defendants’ Motion to Set
Aside/Vacate Default is GRANTED.
Defendants
are ordered to serve and to electronically file their Answer to Plaintiff’s
Complaint within 10 days of this Court’s ruling.
The Non-Jury Trial scheduled for 04/07/2025 at 8:30 a.m. in
Department 25 of the Spring Street Courthouse, remains on calendar as currently
scheduled.
Counsel for the Moving parties is ordered to give notice.