Judge: Mark C. Kim, Case: 21LBCV00644, Date: 2023-03-23 Tentative Ruling
Case Number: 21LBCV00644 Hearing Date: March 23, 2023 Dept: S27
1. Background
Facts
Plaintiff, Law Offices of Saman Behnam,
APC filed this action against Defendant, Naqvi Bukhari on 12/09/21. The complaint includes a single cause of
action for breach of contract and alleges Defendant retained Plaintiff to
represent him in connection with marital dissolution proceedings and failed to pay
the amount due per the parties’ contract.
On 1/06/22, Defendant applied for
and obtained an order on court fee waiver, and also filed a request for copies
of the complaint and related documents in this case. On 1/07/22, Plaintiff applied for and obtained
an order permitting him to serve Defendant by publication.
On 3/17/22, Plaintiff filed proof
of publication. On 4/01/22, at Plaintiff’s
request, the Clerk entered Defendant’s default.
On 5/09/22, the Court held a Case Management Conference and both parties
appeared. On 6/14/22, Defendant filed a
request for copies of the entire file.
On 6/21/22, the Court held another CMC, and again both parties
appeared.
On 6/24/22, Plaintiff filed all
papers in support of his request for default judgment. On 7/05/22, the Court entered judgment per
Plaintiff’s request.
On 10/05/22, Defendant filed this
motion to vacate default and default judgment.
2. Motion
to Vacate Default and Default Judgment
a. CCP
§473.5
Defendant moves to vacate the default
and default judgment entered against him pursuant to CCP §473.5. §473.5 provides:
(a) 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.
(b) 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. The party
shall serve and file with the notice a copy of the answer, motion, or other
pleading proposed to be filed in the action.
(c) Upon a finding by the court
that the motion was made within the period permitted by subdivision (a) and
that his or her lack of actual notice in time to defend the action was not
caused by his or her avoidance of service or inexcusable neglect, it may set
aside the default or default judgment on whatever terms as may be just and
allow the party to defend the action.
b. Actual
Notice
The statute, by its very terms, requires
lack of actual notice of the proceedings against the moving party. In this case, Defendant clearly had notice of
the proceedings against him. Defendant
took action to obtain copies of the file before his default was entered. Defendant declares he went to Legal Aid and
Legal Aid told him he didn’t need to do anything until he was served. Defendant, however, does not explain what, if
anything, he was doing to monitor the case file during this time. Additionally, nothing in Defendant’s
declaration negates actual notice of the proceedings against him, only lack of
notice that he needed to file an answer.
c. Avoidance
of Service or Inexcusable Neglect
The statute also requires that the
lack of notice not be caused by avoidance of service or inexcusable
neglect. At a minimum, the lack of
notice was caused by inexcusable neglect.
As noted above, the case file shows Defendant knew of the proceedings and
was taking steps to monitor the proceedings.
Additionally, Plaintiff provides evidence that he communicated the
status of the action to Defendant, and Defendant chose not to act (see Exhibits
A and C, copies of a 12/08/21 notice of right to fee arbitration and 12/17/21
notice of lawsuit with case number, respectively).
Plaintiff also provides evidence
that Defendant’s failure to be in his residence during the subject service
period raises serious questions about whether Defendant was avoiding
service. Plaintiff shows that he sent
Defendant two letters regarding the lawsuit in early December, transferred his
interest in his real property to a third party shortly thereafter (Exhibit B to
opposition), and failed to occupy the real property around that same time. While this is not conclusive proof of
avoiding service, the Court finds the showing, in the moving papers, to be very
weak in this regard.
d. Reasonable
Time
Perhaps the most fatal defect in
this motion is the failure to file the motion within a “reasonable time,” as
required by the statute. As noted above,
the Clerk entered Defendant’s default on 4/01/22. As also noted above, Defendant appeared at a
CMC on 5/09/22. At a minimum, by 5/09/22,
Defendant knew he was in default. He failed,
however, to file this motion until 10/05/22, almost five months later. In the interim, despite participating in
numerous proceedings and being advised to retain an attorney and/or move to vacate
the default, Defendant did not take steps to have the default vacated, and
instead default judgment was entered.
e. Conclusion
For all of the above reasons, the
motion to vacate default and default judgment is denied.
Plaintiff is ordered to give
notice.
Parties who intend to submit
on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as
directed by the instructions provided on the court website at www.lacourt.org. If the department
does not receive an email indicating the parties are submitting on the
tentative and there are no appearances at the hearing, the motion may be placed
off calendar. If a party submits on
the tentative, the party’s email must include the case number and must identify
the party submitting on the tentative.