Judge: Lynne M. Hobbs, Case: 22STCV15536, Date: 2024-12-05 Tentative Ruling

Case Number: 22STCV15536    Hearing Date: December 5, 2024    Dept: 61

LONG HOANG NGUYEN vs CONG CHI BUI

TENTATIVE

Defendant Cong Chi Bui’s Motion to Set Aside Default and Default Judgment is GRANTED. Defendant is ordered to file the proposed answer within 30 days.

Defendant to give notice.

DISCUSSION

Code of Civil Procedure § 473.5 provides a basis to set aside default when a party lacks actual notice of the action:

“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.” (Code Civ. Proc. § 473.5, subd. (a).) This motion must be brought “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. (Ibid.)

Defendant Cong Chi Bui (Defendant) seeks to set aside the default and default judgment entered against him on September 13 and November 21, 2022, respectively, on the grounds that he lacked actual notice of the action. The proof of service filed in this action on July 27, 2022, indicates that Defendant was personally served at an address on Hensel Street in Baldwin Park, on June 26, 2022. Defendant denies being personally served, and states his business as a trucker makes it unlikely he was at his address of residence at the time service was accomplished. (Bui Decl. ¶¶ 5–7.) Defendant denies having any knowledge of this action until he consulted his attorney about another action related to the property on September 4, 2024.(Bui Decl. ¶¶1, 8.)

Plaintiff Long Hoang Nguyen (Plaintiff) argues that Defendant was served as indicated in the proofs of service, and further argues that if Defendant lacked actual notice of the action in time to defend against the judgment, he should have had notice by virtue of a subsequent unlawful detainer action filed against his relatives living on the property, whose defaults were entered on September 6, 2023, with judgment entered against them on April 23, 2024. (Opposition at pp. 4–5.)

Both parties present a relatively thin showing here. Defendant’s showing as to the lack of actual notice is grounded essentially on his testimony that he was not served, and the proffered excuse that this was because he was a trucker away from his residence at the time. Plaintiff’s showing to the contrary, meanwhile, consists largely of a reference to another lawsuit for unlawful detainer filed against occupants of the property, to which Defendant himself was not a party, and for which default judgment was entered on August 2, 2024. (See LASC Case No. 23PSCV02101, Long Hoang Nguyen v. Thani Bui.) Eviction was accomplished on August 28, 2024, near the September 4 date Defendant contends he received notice of this action. (Opposition Exh. J.)

Defendant showing is the more persuasive, because he testifies directly that he was not served and offers the reason why. The proofs of service in this action indicate that service was not accomplished by a registered process server, therefore not creating a presumption as to the facts stated therein. (See Evid. Code § 647.) The only evidence that Plaintiff presents as to Defendant possessing notice is the contention that another action ought to have provided him notice. But this action was directed against other people, connected to Defendant only by their occupation of the property, and judgment in that action, like the present one, was secured by default. It is likely that Defendant first gained notice of this action shortly after eviction was attempted upon these other parties on August 28, 2024, as he contends. Defendant’s motion contains a copy of his proposed answer. (Motion Exh. A.)

The motion is therefore GRANTED.