Judge: Malcolm Mackey, Case: 22STCV14252, Date: 2023-04-25 Tentative Ruling


Case Number: 22STCV14252    Hearing Date: April 25, 2023    Dept: 55

YMCA ASSOC. OF METRO. L. A. v. 6600 SELMA AVE., LLC          22STCV14252

Hearing Date:  4/25/23,  Dept. 55

#3:   MOTION FOR RELIEF FROM DEFAULT.

 

Notice:  Okay

Opposition

 

MP:  Defendant JAYESH KUMAR.

RP:  Plaintiff

 

 

Summary

 

On 4/28/22, Plaintiff YMCA ASSOC. OF METRO. L. A. filed a Complaint alleging that defendants, including the lessor and guarantors, are liable for unpaid rent as to a commercial premises.

On 1/31/23, the Court vacated and set aside default as to co-Defendant MADHUBAN KUMAR.

 

 

MP Positions

 

Moving party requests an order granting relief from default, and allowing the proposed Answer to be filed, on grounds including the following:

 

·         Moving Defendant was purportedly served at his brother’s residential address, and not where Defendant actually resides. 

·         Based on the error in the service of the summons and any resulting mistake and/or excusable neglect, the Court should grant relief and set aside the default.

 

 

RP Positions

 

Opposing party advocates denying, for reasons including the following:

 

·         Two family members (Defendant’s mother and sister-in-law) confirmed, to the process server, Defendant’s residence at that address.

·         Public records confirm his sufficient connection to that address. Plaintiff’s counsel obtained public record reports from LexisNexis and idiCore.

·         Defendant confirmed his own sufficient connection to that address in multiple filings with the California Secretary of State that he signed under penalty of perjury.

·         “[T[wo or three attempts at personal service at a proper place…fully satisfy the requirement of reasonable diligence and allow substituted service to be made.” Bein, 6 Cal. App. 4th at 1391-92

·         Motions made under CCP § 473(b) must be “made within a reasonable time,” which California courts have interpreted to be three months absent compelling justification. He waited six months from the day that default was entered, to file the instant motion, and makes no attempt to carry the burden of justifying why he and counsel waited that long.

·         Defendant also seeks relief from default under California Code of Civil Procedure (“CCP”) § 473.5, but fails to establish he lacked actual notice in time to defend this action.

·         He improperly attempts to use his “belief” that substitute service was improper at the address, as a basis for setting aside his default due to “mistake” or “excusable neglect” under CCP § 473(b).

·         Relief from default as to another defendant does not require relief as to more defendants.  Bakersfield Imp. Co. v. Bakersfield Theater Co., 40 Cal. App. 703, 705 (1919).

 

 

 

Tentative Ruling

 

The motion is granted.

The Court vacates and sets aside default entered 6/27/22 against Defendant JAYESH KUMAR.

Moving Defendant’s proposed Answer may be served and filed, as a separate document, within 10 days.

The opposing declarations are not competent to show moving Defendant’s residence at the time of service in April 2022.  The process server’s declaration relies upon a hearsay statements from others in the house indicating it was Defendant’s residence.  The opposing attorney declaration relies upon hearsay from computer databases and government records stating Defendant’s residence later in September 2022 and after.

Plaintiff has the burden to oppose and to evidence valid statutory service of the summons.  Complainants have the initial burden to evidence valid statutory service of a summons and complaint. Dill v. Berquist Const. Co., Inc. (1994) 24 Cal.App.4th 1426, 1439-40;  Floveyor Internat. v. Sup. Ct. (1997) 59 Cal. App. 4th 789, 794.  

Orders denying relief under Code of Civil Procedure Section 473 would be scrutinized on appeal more carefully than orders granting and enabling a resolution on the merits.  E.g.,  Henderson v. Pacific Gas and Elec. Co. (2010) 187 Cal.App.4th 215, 230.

A motion pursuant to Code of Civil Procedure Section 473 must be made “‘within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken….’”  Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal. 4th 249, 258 (quoting CCP §473(b)).  “‘Lack of prejudice is one of the factors the trial court may properly consider in determining whether defendant acted diligently.’”  Cruz v. Fagor America, Inc. (2007) 146 Cal. App. 4th 488, 509. 

Code of Civil Procedure “Section 415.20, subdivision (b), provides in 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 other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, 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.’”  Trackman v. Kenney (2010) 187 Cal.App.4th 175, 182-83.  [Emphasis added.]  Accord  American Exp. Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389.  See also generally   Civ. Pro. Before Trial (The Rutter Group 2022) §4:206.  “Substituted service is valid only if a good faith, reasonable effort at personal service on the party to be served is first attempted.”  Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1164.

“Hearsay is defined in [Evidence Code] section 1200 as ‘evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.’ ”  Jazayeri v. Mao (2009) 174 Cal. App. 4th 301, 316.

As to online information, general authentication rules apply, including the requirement of sufficient evidentiary foundation supporting a finding that writings are what they purport to be. Kinda v. Carpenter (2016) 247 Cal. App. 4th 1268, 1283. 

Documents appearing to be Internet searches of various web sites are inadmissible absent authentication demonstrating that they actually depict what they purport to show.  McGarry v. Sax (2008) 158 Cal. App. 4th 983, 991.  A court decided that information, reporting accusations against a party, and obtained from the Internet, clearly was objectionable as being hearsay.  Knapp v. Doherty (2004) 123 Cal. App. 4th 76, 101-102.

Materials prepared by private parties that are on file with governmental agencies, such as the Secretary of State, are not official records of which conclusive judicial notice may be taken.  People v. Thacker (1985) 175 Cal.App.3d 594, 598-99;  Stevens v. Sup. Ct. (1999) 75 Cal.App.4th 594, 608.

*IF BOTH PARTIES WOULD LIKE TO SUBMIT ON THE COURT’S TENTATIVE RULING, PLEASE CALL THE COURTROOM AT 213-633-0655*