TENTATIVE RULING

Defendant Ahava Amenra’s Motion to Vacate and Set Aside Default is DENIED.

Defendant Ahava Amenra to give notice. 

REASONING

Defendant Ahava Amenra (“Defendant”) moves the Court for an order vacating the default entered against him on November 2, 2023 on the ground that the default was the result of mistake, inadvertence, surprise, or excusable neglect.

First, as to timeliness of the present motion, Code of Civil Procedure section 473, subdivision (b), provides that “[t]he court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect,” and “[a]pplication for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” Plaintiff Jennifer Fitzmorris, as Trustee of the Fitzmorris Living Trust (“Plaintiff”) argues that this motion was filed on May 2, 2024, which is 182 days after the default was entered against Defendant on November 2, 2023, thereby exceeding the six-month limitation. The Second District Court of Appeal has stated that “as employed in section 473 of the Code of Civil Procedure six months is the equivalent of half a year and, under section 6803 of the Government Code, is the equivalent of 182 days.” (Davis v. Thayer (1980) 113 Cal.App.3d 892, 903.) It follows that Defendant had until May 2, 2024 to file the motion to set aside the default, and Defendant filed the motion on May 2, 2024, although the Court continued the hearing to allow the parties the opportunity to fully address the merits of the motion due to Defendant’s inadvertent omission of a declaration. Thus, the Court considers the present motion timely.

Defendant argues that the default should be set aside because he was surprised to learn of the default and never received copies of the First Amended Complaint. Code of Civil Procedure sections 415.10 through 415.95 describe the various methods of service of a summons, including, amongst others, personal service or substituted service. Here, the proof of service filed on November 2, 2023 indicates that Defendant was served by substituted service on September 22, 2023 at 406 Broadway, Suite 133, in Santa Monica, with service accepted by a manager identified as Armina Doe. The proof of service is signed by a registered California process server and includes a declaration of diligence and proof of service by mail. In the declaration of diligence, Armina Doe accepted service because she knew Defendant.

With respect to substitute service, section 415.20, subdivision (b), of the Code of Civil Procedure provides, in relevant part:

If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served . . . a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address . . . in the presence of a competent member of the household or a person apparently in charge of his or her . . . usual mailing address . . . at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left.

Defendant states in his declaration that while 406 Broadway, Suite 133 is his mailing address, he did not receive copies of the First Amended Complaint from his mail service. Notably, he provides no sworn statement as to whether Armina Doe gave him the documents. The Court finds that Defendant is not entitled to relief here. First, case law establishes that where one of the statutory methods of service is followed, due process has been satisfied even if the defendant did not receive actual notice of the proceedings against him. (See Evans v. Department of Motor Vehicles (1994) 21 Cal.App.4th 958, 971 [“[D]ue process of law does not require actual notice, but only a method reasonably certain to accomplish that end.”].) Additionally, Evidence Code section 647 provides that the return of a California registered process server “establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.” Defendant has failed to overcome the presumption of proper service here by simply stating he did not receive the documents in the mail. Accordingly, Defendant Ahava Amenra’s Motion to Vacate and Set Aside Default is DENIED.