Judge: Mark A. Young, Case: 23SMCV05943, Date: 2024-05-09 Tentative Ruling

Case Number: 23SMCV05943    Hearing Date: May 9, 2024    Dept: M

CASE NAME:           Barrington Pacific LLC v. Tarasyuk

CASE NO.:                23SMCV05943

MOTION:                  Motion to Set Aside/Vacate Default and Default Judgment

HEARING DATE:   5/9/2024

Legal Standard

Code of Civil Procedure section 473.5(a) permits the court to set aside a default or default judgment “[w]hen 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.”  “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 .”  (Id.) The phrase “actual notice” means “genuine knowledge of the party litigant” and does not include constructive or imputed notice to the client.  (Tunis v. Barrow (1986) 184 Cal. App. 3d 1069, 1077.) A defendant also must show that his “lack of actual notice in time to defend the action was not caused by his inexcusable neglect or avoidance of service.”  (Id. at 1077-1078.) Further, the court is “not required to accept [a] self-serving evidence contradicting the process server's declaration.” (Rodriguez v. Nam Min Cho (2015) 236 Cal.App.4th 742, 751.) 

Analysis

Defendant Olena Tarasyuk moves to vacate her default and default judgment. Defendant asserts that service of summons did not result in actual notice. (CCP section 473.5.)

The proof of service on file shows Defendant was served at 1431 Ocean Ave., Apt 601, Santa Monica, via posting and mailing with return receipt requested. (CCP section 415.45.)  Defendant contends that the service did not result in actual notice in time to defend the action. Defendant claims that she was never served with the complaint or any other documentation regarding this suit. (Tarasyuk Decl., ¶ 2.) She only became aware of the lawsuit on February 13, 2024, when a member of the management at the apartment complex said that she had “already been sued and would be evicted.” (Id., ¶ 3.) In response, Defendant looked up this action online and for the first time became aware of it. (Id., ¶ 4.) Defendant immediately prepared and attempted to file an answer but discovered the default precluded her from answering. (Id., ¶ 5.)

Defendant demonstrates that she filed the motion within a reasonable amount of time after her purported discovery of this action and default judgment. However, Defendant’s self-serving and conclusory declaration does not overcome the proof of service on file that indicates a registered process server was served on January 17, 2024, by posting and mailing.  In addition to service, Defendant was sent notices from the Court and counsel regarding the case status. Therefore, the Court finds it more likely than not that the posting and mailing service resulted in actual notice. Moreover, the writ of possession has already been executed rendering the motion moot.

Accordingly, the motion is DENIED.