Judge Lee W. Tsao, Case Number: 23NWCV00500, Date: 2023-11-01 Tentative Ruling

Judge: Lee W. Tsao, Case: 23NWCV00500, Date: 2023-11-01 Tentative Ruling

Case Number: 23NWCV00500 Hearing Date: November 8, 2023 Dept: C

American express national bank v. asherian

CASE NO.: 23NWCV00500

HEARING: 11/8/23 @ 9:30 AM

#Add-On

Defendant’s Motion to Set Aside Default Judgment is GRANTED.

Moving Party to give NOTICE.

Defendant Ilan Asherian, dba A to Z Textile, Inc. (Defendant) moves for relief from default judgment pursuant to CCP § 473(b). This Motion is unopposed.

Background

On, February 15, 2023 Plaintiff American Express National Bank (Plaintiff) filed a Complaint for Account Stated and Open Book Account against Defendant related to a credit card account. Plaintiff alleges that Defendant owes $62,560.72. Plaintiff requested entry of default on April 26, 2023 and moved for default judgment on May 19, 2023 which was granted. On August 11, 2023, Defendant moved to set aside the default.

Legal Standard

“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.)

Discussion

Here, Defendant’s Motion to Set Aside Default is within the six month period allowed by CCP § 473. Thus, there is a strong public policy in favor of granting Defendant’s Motion.

Default judgment against Defendant is set aside because the proof of service has the incorrect address. Defendant states that his address is 1555 High Knoll Road, Encino, California 91436. (Asherian Decl., ¶ 6.) The proof of service provides the address where Defendant was served was 15555 High Knoll Road, Encino, California 91436. Further, Defendant states that he was never served with the Complaint. (Asherian Decl., ¶ 5.) Additionally, the proof of service states that “Ilan Asherian d/b/a Atoz Textile Inc” was served and also that an unidentified person other than Defendant was served. Thus, it is not clear to this Court that Defendant was served with the Complaint. Defendant has filed a proposed anawer pursuant to CCP § 473.5(b). Thus, Defendant’s Motion to Set Aside Default is granted.

Accordingly, Defendant’s Motion to Set Aside Default Judgment is GRANTED. Defendant is ordered to file the [Proposed] General Denial filed with this Court on November 1, 2023 as his answer within 20 days of this Order.