Judge Lee W. Tsao, Case 23NWCV00215 2023-04-05 Tentative Ruling

Judge: Lee W. Tsao, Case: 23NWCV00215, Date: 2023-04-05 Tentative Ruling

Case Number: 23NWCV00215 Hearing Date: April 5, 2023 Dept: C

S-H, LLC V. GRIGORYAN

CASE NO.: 23NWCV00215

HEARING: 4/5/23 @ 1:30 PM

TENTATIVE RULING

Defendant Grigoryan’s motion to set aside default is GRANTED. Defendant is ordered to file and serve its Answer by April 5, 2023.

Moving Party to give NOTICE.

Defendant Grigoryan moves to set aside default based on extrinsic fraud and CCP § 473.5.

“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.” (CCP § 473.5(a).)

Here, a default judgment was entered on March 6, 2023, and Defendant’s motion, which was filed on March 20, 2023 is timely. Defendant Grigoryan has submitted his declaration, attesting that he only learned about the lawsuit on March 15, 2023. (Grigoryan Decl., ¶ 3.) “6844 Suva Street is the unit that I originally was moving into in October 2021 when a third-party commercial truck ran into the unit and the entire roof of the 14,881 square foot unit collapsed on October 14, 2021. I never finished moving my business in when the roof collapsed.” (Id., ¶ 4.) “In October 2021, before I could fully move my business in to 6844 Suva, the unit was so significantly damaged by the acts of the third party (the commercial truck collided into the main support beam [load bearing beam] of the Property making the entire roof collapse at 6844 Suva) such that the Property was unusable for over 15 months, since October 14, 2021 until February 20,
2023 as Plaintiff refused and/or delayed in repairing the building. Yet, I paid over $143,087.55 in rent for the same period without having any use of the unit.” (Id., ¶ 6.) “Plaintiff did not pay its contractor to finish the roof repairs despite receiving over $130,000 from its insurance company for the repairs. Plaintiff initially pocketed the over $130,000 it received from the insurance company and did not pay its own contractor. So, Plaintiff’s contractor stopped work after the demolition phase. And then, the contractor complained to the City of Bell Gardens of Plaintiff’s malfeasance, placed a hold on the permits and filed a mechanic’s lien on the Property. Only then did Plaintiff pay the contractor to complete the job.” (Id., ¶ 7.) In February 20, 2023, over fifteen months after the roof collapsed, the contractor finished the job, and I was finally able to move my business in to 6844 Suva on March 1, 2023.” (Id., ¶ 8.)

“As to the second unit - 6842 Suva Street - Plaintiff was aware that I sublet 6842 Suva to a third-party tenant—Oleksandr Oborotov and his business CalMex Glass, a distribution company, since October 19, 2021.” (Id., ¶ 5.)

“I made numerous calls to Plaintiff’s counsel and sent emails… However, Plaintiff’s attorneys.. still did not serve me personally but alleges to have subserved me at 6842 Suva, a place that was known to Plaintiff as having been sublet to a third-party and where I do not maintain an office, nor do I have any affiliation with the business that uses those premises.” (Id., ¶ 10.)

The court is satisfied that Plaintiff had no actual notice of the proceedings in time to defend. Accordingly, the motion is GRANTED. Defendant is ordered to file and serve its Answer by April 5, 2023.