Judge: Latrice A. G. Byrdsong, Case: 23STUD07850, Date: 2024-04-11 Tentative Ruling
Case Number: 23STUD07850 Hearing Date: April 11, 2024 Dept: 25
Hearing Date: Thursday, April 11, 2024
Case Name: 215 S. LA CIENEGA, LLC v. JAKE MIOSGE; ALLYSA MOLDER; and DOES 1-10
Case No.: 23STUD07850
Motion: Motion to Set Aside Default and Judgment and for Leave to Defend Unlawful Detainer Action Under CCP 473.5
Moving Party: Defendant Allysa Molder, In Pro Per
Responding Party: None
Notice: OK
Tentative Ruling: Defendant Allysa Molder’s Motion to Set Aside Default Judgment is GRANTED. The Default entered on September 12, 2023, and Unlawful Detainer Judgment entered on September 13, 2023, against Defendant Allysa Molder are hereby SET ASIDE AND VACATED.
Defendant Allysa Molder’s proposed Answer is ordered to be separately filed within 20 days of this Court’s ruling.
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)) OK
OPPOSITION: None filed as of March 28, 2024 [ ] Late [X] None
REPLY: Filed as of April 03, 2024 [ ] Late [ ] None
BACKGROUND
On June 27, 2023, Plaintiff 215 S. La Cienega, LLC (“Plaintiff”) filed an unlawful detainer action against Defendants Jake Miosge (“Miosge”) and Allysa Molder (“Molder”).
Defendant Miosge filed his Answer to the Complaint on July 07, 2023.
On September 12, 2023, Plaintiff moved for default to be entered against Defendant Molder. The Clerk did so the same day.
On September 13, 223, the Court entered judgment after trial against Defendant Molder in the amount of $10,000.00.
On November 07, 2023, the Court issued a writ of possession against Defendant Molder.
On March 05, 2024, Defendant Molder filed the instant Motion to Set Aside Default Judgment and for Leave to Defend Unlawful Detainer Action Under CCP 473.5.
No opposition has been filed.
MOVING PARTY POSITION
Defendant Molder prays for the Court to issue an order setting aside the default judgment entered against her on September 13, 2023, and for leave to defend the unlawful detainer action filed against her, pursuant to Code of Civil Procedure § 473.5. Molder argues that Plaintiff never served her with Summons and Complaint to give her actual notice of the action as at the time service was rendered Molder no longer resided at the residence stated in Plaintiff’s POS.
OPPOSITION
No opposition has been filed.
REPLY
In reply, Molder points out that Plaintiff has not filed nor served an opposition to the instant motion and thus requests that the Court grant Molder’s requested relief.
ANALYSIS
I. Legal Standard
A court may set aside a default or default judgment when service of summons has not provided a party with 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, “‘[s]ervice of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.’ [Citation.]” (AO Alfa-Bank v. Yakovlev (2018) 21¿Cal.App.5th 189, 202.) “To establish personal jurisdiction, compliance with statutory procedures for service of process is essential.” (Kremerman v. White (2021). 71 Cal.App.5th 358, 371.) Defendant’s knowledge of the action does not dispense with statutory requirements for service of summons. (Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466.)
“A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow” may move “to quash service of summons on the ground of lack of jurisdiction of the court over him or her” that results from lack of proper service. (Code of Civ. Proc. § 418.10(a)(1). A defendant has 30 days after the service of the summons to file a responsive pleading. (Code Civ. Proc., § 412.20(a)(3).)
“When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.’” (Summers v. McClanahan¿(2006) 140 Cal.App.4th 403, 413.)
II. Discussion
Defendant Molder prays to the Court for an order setting aside the default judgment entered against her on September 13, 2023.
On September 06, 2023, Plaintiff filed a Proof of Service, indicating that on September 01, 2023, Molder was served by Personal Service. Specifically, Plaintiff’s proof of service indicates that Ms. Molder was personally served with the Summons and Complaint at 4960 Rosewood Avenue, Unit 428, Los Angeles, California 90004. (09-06-23 Proof of Personal Service.) The Proof of Service is signed by a registered California process server, Colin Chapman, under penalty of perjury. (Id.). “Evidence Code section 647 provides that a registered process server’s declaration of service establishes a presumption affecting the burden of producing evidence of the facts stated in the declaration. [Citation.]” (American Express Centurion Bank v. Zara (2011) 199¿Cal.App.4th 383, 390; Evid. Code § 647.)
Here, Defendant Molder’s motion is timely filed. Since judgment has already been entered, Molder needed to have filed the instant motion within 180 days of service of written notice that the default had been entered. Here, default was entered against Molder on September 12, 2023. (09-12-23 Request for Entry of Default.) Defendant filed the instant motion on March 05, 2024, well within 180-day time limit and the two-year time limit in the alternative. Thus, the Court finds the motion to be timely.
Molder provides the Court with her own sworn declaration in which she swears she was never served with a copy of the summons and complaint. (Allysa Molder Decl. ¶ 2.) Molder states that she and her husband, Defendant Miosge, previously rented an apartment at 4960 Rosewood Ave, Apt. No 428, Los Angeles, CA, 90004 (“the Apartment”). (Id. ¶ 3.) Due to a dispute which arose amongst the parties regarding the habitability of the Apartment, Defendants rented a new apartment at 510 South Hewitt Street, Apt. 510, Los Angeles, California, 90013 and moved the majority of their possessions into the new apartment on June 09, 2023. (Id. 4.) Molder further declares that she never entered the inside of the Apartment after June 30, 2023, after being evicted by the Plaintiff. (Id. ¶ 7.) Moreover, on September 01, 2023, she was with Defendant Miosge at their new apartment and later at a mall.
The Court notes that no opposition has been filed by the Plaintiff.
Here, the Court finds that Defendant has overcome the presumption established by Plaintiff’s Proof of Service. Here, Defendant provides evidence that she lacked actual notice of the action because she was not properly served under CCP § 415.10. The Court notes that Defendant’s knowledge of the action does not dispense with statutory requirements for service of summons. (Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466.) Although, based on Defendant’s declaration it appears that neither Defendant was properly served with Summons and Complaint, Defendant Miosge’s appearance in the action does not obfuscate the service requirements mandated by the Code of Civil Procedure. Defendant’s evidence controverts Plaintiff’s POS because it indicates that, by the date that service was stated to have been rendered, Defendants no longer resided at the Apartment. Further, Plaintiff does not provide any evidence, such as a declaration from itself or the service processor, disputing Molder’s declaration.
Thus, the Court finds that Ms. Molder has overcome the presumption established by the Proof of Service filed on September 05, 2023. Here, Defendant Molder provides evidence that she had no actual knowledge of the litigation against her and that the service was improper as it was served at a residence at which she no longer resided at the time service was stated to have been rendered. Molder additionally includes a proposed Answer with its Motion to Set Aside to be filed in this action. (Molder Decl. ¶ 2; Exh A.)
Thus, Defendant Molder’s Motion to Set Aside Default and Judgment is GRANTED.
III. Conclusion
Defendant Allysa Molder’s Motion to Set Aside Default and Unlawful Detainer Judgment is GRANTED.
The default entered on September 12, 2023, and Judgment entered on September 13, 2023 as to Defendant Allysa Molder are hereby SET ASIDE AND VACATED.
Defendant Allysa Molder’s (Proposed) Answer is ordered to be separately filed within 20 days of this Court’s ruling.
Moving party is ordered to give notice.