Judge Lee S. Arian, Case Number: 21STCV46598, Date: 2024-06-10 Tentative Ruling

On February 8, 2024, default was entered against Defendant Kian Weng Tan. Plaintiff is currently seeking, but has not yet obtained, a default judgment. On April 4, 2024, Defendant moved the Court for relief from default, arguing that he did not receive actual service of the lawsuit. Substitute service was allegedly made at the address on his driver's license in June and July 2023; however, Defendant declares that he has not resided at that address since 2021. Additionally, Defendant asserts that he was not in the United States when the substitute service occurred, as his student visa expired in 2022, and he was unable to obtain a work visa.

CCP §473.5(a) permits the court to vacate a default judgment “[w]hen 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.” The phrase “actual notice” means “genuine knowledge of the party litigant.” (Tunis v. Barrow (1986) 184 Cal. App. 3d 1069, 1077.)¿

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.¿Under section 473.5(b), a “notice of motion to set aside a default or default judgment and for leave to defend the action . . . 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.”¿

Under (c), “upon a finding by the court that the motion was made within the period permitted by (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.”

The present motion is timely. Under CCP 473.5, the notice of motion must be served and filed within a reasonable time, but not later than 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. No default judgment has been entered against Plaintiff. Default was entered on February 8, 2024, and the motion was filed on April 4, 2024, less than 180 days since the entry of default.

The Court finds that Defendant did not have actual notice of the present action. Proof of service showed attempts to serve Defendant in June and July of 2023 at 18401 Kingsbury Street, Northridge, California 91326. Defendant filed a declaration stating he has not lived at that address since 2021. Furthermore, Defendant presented a copy of his student visa from 2017 to 2022 and declares that he left the United States soon after it expired, without being able to obtain a work visa. Defendant is currently residing in Malaysia.

Plaintiff argues that service was proper under California Vehicle Code § 1808.21. The issue under Code of Civil Procedure § 473.5 is not whether service was executed correctly, but rather whether Defendant received actual notice. Plaintiff argues that Defendants have not sufficiently demonstrated, through declarations under oath, that their lack of actual notice in time to defend the action was not caused by avoidance of service or inexcusable neglect. This claim is unfounded as Defendant’s declaration and evidence make clear that his departure from the United States was due to the expiration of his visa and not to avoid service. Plaintiff presented no evidence or argument to contradict this.

Defendant stated in his reply that a proposed answer was filed with the moving papers; however, the Court did not find the proposed pleading. The Court conditionally grants the motion, subject to the filing of the proposed pleading within 20 days from today.

PLEASE TAKE NOTICE:¿

If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept27@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.

Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿You should assume that others may appear at the hearing to argue.

If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.