Judge Lynne M. Hobbs, Case Number: 20STCV35567, Date: 2024-03-19 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 20STCV35567, Date: 2024-03-19 Tentative Ruling

Case Number: 20STCV35567 Hearing Date: March 19, 2024 Dept: 30

ASHLEY SHIELDS vs JAYDEN HAND CARWASH, et al.

TENTATIVE

Motion to Set Aside Default and Default Judgment is GRANTED. Defendant is ordered to file a responsive pleading within 20 days of this Order. Moving party is ordered to give notice.

Request for Judicial Notice

Mr. Flores requests the Court take judicial notice of (1) the complaint, (2) proof of service of summons to Adam M. Flores filed October 9, 2020, (3) proof of service of summons to Jayden Hand Carwash, (4) Requests for Entry of Default as against Adam M. Flores and Jayden Hand Carwash filed and entered June 29, 2021, and (5) Judgment entered November 18, 2022.

The request is GRANTED under Evidence Code section 452(d).

Legal Standard

CCP § 473.5(a) provides: “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).)

“A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date¿prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that¿the¿party's lack of actual notice in time to defend the action was not caused by his¿or her¿avoidance of service or inexcusable neglect.” (CCP § 473.5(b).)

“‘[A]ctual notice’ in section 473.5 ‘means genuine knowledge of the party litigant . . . .’ [Citations.] ‘[A]ctual knowledge’ has been strictly construed, with the aim of implementing the policy of liberally granting relief so that cases may be resolved on their merits.’ [Citation.]” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 547.) “[A] party can make a motion showing a lack of actual notice not caused by avoidance of service or inexcusable neglect . . .” (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180.) “‘[I]t does not require a showing that plaintiff did anything improper . . . . [T]he defaulting defendant simply asserts that he or she did not have actual notice’.” (Id.)

Discussion

Mr. Flores seeks relief under Code of Civil Procedure section 473.5.

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, Mr. Flores has filed this motion within two years of default judgment being entered against him on November 18, 2022. Therefore, the motion was timely.

Mr. Flores contends he is entitled to relief from California Code of Civil Procedure section 473.5, as service on him was ineffective. Mr. Flores states that he is not the owner of Jayden Hand Carwash, and thus substituted service on him left at the address of Jayden Hand Carwash was improper. (Motion, 5:8-12.) Mr. Flores contends personal service attempts were made on October 6 and 7, 2020 at the car wash, but not at his home or place of business. (Id., 5:23-26.) Further, the substituted service was left at the car wash, not Mr. Flores’ dwelling house or usual place of business. (Id., 6:10-12.) As such, Mr. Flores was not properly served and did not actually receive notice.

Mr. Flores states he only became aware of the of the entry of judgment against him when he received a copy of an Abstract of Judgment recorded against him in December 2023. (Id., 4:14-18.)

Plaintiff argues upon researching Jayden Hand Carwash, tax bills were sent to 6800 Hoover Street. (Opposition, 2:3-8.) Plaintiff further contends that the process server on October 5, 2020 was told Mr. Flores was not in, and again on October 6, 2020, which indicates he was evading service. (Id., 2:9-15.) Plaintiff states Mr. Flores does not deny receiving mail at 6800 Hoover Street. (Id., 3:7-8.)

On reply, Mr. Flores states Plaintiff assumed Mr. Flores was owner of Jayden Hand Carwash, he merely owns the property located at 6800 Hoover Street. (Reply, 2:7-12.) Further, Mr. Flores states Plaintiff assumes the 6800 Hoover Street property is his usual mailing address, however it is not, as Mr. Flores provides his actual mailing address as being located in Harbor City, California, where he received the Abstract of Judgment. (Id., 3:3-4, 17-19, 23-24.)

Mr. Flores details that under Code of Civil Procedure section 415.20(b) service must be made upon an individual at a dwelling house, usual place of abode, usual place of business, or usual mailing address. Mr. Flores contends the 6800 Hoover Street address does not fit any of those categories of address to be effective service. (Id., 4-5:25-28, 1-2.) Mr. Flores provides his usual mailing address where he received the Abstract of Judgment being not 800 Hoover Street, but a location in Harbor City. (Flores Decl., ¶ 2.)

In accordance with Code of Civil Procedure section 473.5, it is clear the service of was ineffective and did not provide Mr. Flores with actual notice of the proceedings against him.

Accordingly, the motion to set aside default and default judgment is GRANTED.