TENTATIVE RULING

Defendant Andre Sion Khalili’s Motion for Order Granting Relief from Default [C.C.P., § 473(b)] is DENIED.

Defendant Andre Sion Khalili to give notice. 

REASONING

Defendant Andre Sion Khalili (“Defendant”) moves the Court for an order setting aside the default entered against him on December 27, 2023, on the ground that Plaintiff Tony Lewis (“Plaintiff”) failed to inform defense counsel about this pending action and the default, despite his knowledge that Defendant was represented by counsel, Defendant did not receive mail at the subject premises, and the default is void because Defendant was not properly served with the summons and complaint.

In the event service did not result in notice of the action to a party, section 473.5 of the Code of Civil Procedure, subdivision (a), provides, in relevant part:

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.

Further, “a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute,” thus failing to establish personal jurisdiction over the defendant, “is void.” (Dill v. Bernquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) Pursuant to Code of Civil Procedure section 473, subdivision (d), the Court may “set aside any void judgment or order,” and “a void judgment may be set aside at any time” (Milrot v. Stamper Medical Corp. (1996) 44 Cal.App.4th 182, 188). Here, the entry of default occurred less than six months before Defendant filed the present motion on January 11, 2024, such that Defendant’s motion is timely.

The proof of service filed on December 26, 2023, states that Defendant was served by posting and mailing at 1155 North La Cienega Boulevard, ph 10, in West Hollywood. Registered California process server Andy Guerridos states that the summons and complaint were posted on December 3, 2023, and a declaration of mailing the documents is attached to the proof of service. The application to serve by posting, filed on November 9, 2023, indicated that service had been attempted at Defendant’s residence, and the non-service report attached to the application, which was executed by registered California process server Esmerelda Pech, states that five attempts were made to serve Defendant at the residence. The first attempt indicates that the front desk spoke to Defendant, but Defendant did not answer the door; the second and third attempts indicate there was no activity at the residence; the fourth attempt indicates that there was someone inside the unit, as the process server heard music and saw movement from the door peephole, but no one answered; and the fifth attempt indicates the front desk contacted Defendant, and he was not home.

Code of Civil Procedure section 415.45, subdivision (a), states that “[a] summons in an action for unlawful detainer of real property may be served by posting if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in any manner specified in this article other than publication.” Here, the non-service report attached to the application to post gave the Court reason to believe that Defendant could not be served with reasonable in any manner specified by code other than publication. Defendant argues that the default should be set aside because Plaintiff’s counsel did not contact defense counsel about this action at any time prior to taking Defendant’s default, Defendant did not receive mail at the premises, and Defendant did not receive the summons and complaint. (Mot., Khalili Decl. ¶¶ 4-8; Yakobian Decl. ¶ 9.)

Defendant has failed to provide grounds to set aside the default here. First, service by a registered process server creates a rebuttable presumption of proper service. (Evid. Code, § 647.) Second, Defendant does not dispute that 1155 North La Cienega Boulevard, #PH 10, is his residence, the facts in the non-service report supported a conclusion that Defendant was evading service, and he provides no sworn statement stating that he was not at the residence during any of the five attempts, instead providing only a statement that he is “always at work during business hours” and is “typically not home on weekends during the day.” (Mot., Khalili Decl. ¶ 6.) Third, there is no requirement that a party contact an opposing party’s attorney in another case before serving by posting or taking a default. Defendant provides no evidence that Plaintiff’s counsel was aware that Defendant was represented by counsel in this action, and the mere fact that he was represented by counsel in another action does not compel a conclusion that he had the same attorney, or any attorney, in this action. Put simply, the Court lacks a basis to conclude that Defendant was not properly served or that he lacked sufficient notice of this action. Accordingly, Defendant Andre Sion Khalili’s Motion for Order Granting Relief from Default [C.C.P., § 473(b)] is DENIED.