Judge Lee W. Tsao, Case Number: VC066928, Date: 2024-01-03 Tentative Ruling

Judge: Lee W. Tsao, Case: VC066928, Date: 2024-01-03 Tentative Ruling

Case Number: VC066928 Hearing Date: January 3, 2024 Dept: C

portillo v. se investments, et al.

CASE NO.: VC066928

HEARING: 1/3/24 @ 10:30 AM

Defendants’ Motion to Set Aside Default Judgment is GRANTED.

Moving Party to give NOTICE.

Defendants SE Investments, LLC (SE) and Shahareh Etaat (Etaat) (collectively “Defendants”) move to set aside default judgment entered against them for lack of proper service.

This Motion is unopposed.

Background

In the operative First Amended Complaint (FAC) filed on July 29, 2019, Plaintiff Maria Portillo (“Plaintiff”) brings causes of action for:

1. Breach of Contract

2. Breach of the Implied Covenant of Good Faith and Fair Dealing

3. Sales Contract Breach of Implied Warranty Habitability

4. Intention Infliction of Emotional Distress

5. Premises Liability

6. Negligence

7. Negligence Per Se

The clerk entered default on January 14, 2020. Plaintiff submitted numerous incorrect forms for Court Judgment on Default and, thus, judgment was not entered until July 13, 2023.

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 180-day period provided by CCP § 473.5 to set aside default judgments for lack of service.

Defendants argue that they was not properly served with either the Complaint or the FAC. First, Etaat states in her declaration that she was not at the address listed in the Proof of Service on February 15, 2019, at 6:35 PM when the Complaint was allegedly served or on January 14, 2020, at 5:32 PM when the FAC was allegedly served. (Etaat Decl., ¶¶ 6-7.) The address listed, 1960 East Grand Avenue is her CPA’s address, whose office closes at 5:00 PM. (Etaat Decl., ¶ 6; Judge Decl., ¶ 7.) Second, Shahram Etaat (Shahram), the registered agent for service of process for SE, states in his declaration that he was not at the address listed in the Proof of Service on February 19, 2018, at 1:45 PM when the Complaint was allegedly served or on August 6, 2019, at 2:40 PM when the FAC was allegedly served. (Shahram Decl., ¶ 8 and 11.) Shahram states that the listed address is his residence, however, on February 19, 2018 at 1:45 he was working at RBB Architects, Inc., 10980 Wilshire Boulevard, Los Angeles, CA 90024, and attached his timesheet for that period which shows that working that day. (Shahram Decl., ¶ 8, Ex. 1.) Shahram states that he was also working on August 6, 2019 when the FAC was allegedly served and attaches his timesheet. (Shahram Decl., ¶ 11, Ex. 2.) Finally, the person serving the papers, Vanessa Carbajal, is not a registered process server. Thus, there is no presumption of valid service under Evidence Code § 647. The default judgment is set aside because Defendants have established that they were not properly served with notice of the pending action.

Accordingly, Defendants’ Motion to Set Aside Default Judgment is GRANTED. Defendant is ordered to file the Answer attached to this Motion within 10 days of this Order.