Judge: Mark E. Windham, Case: 19STLC04173, Date: 2022-08-30 Tentative Ruling

Case Number: 19STLC04173    Hearing Date: August 30, 2022    Dept: 26

TENTATIVE RULING:

Defendant Hovek Bademyan’s Motion to Vacate Default and Default Judgment is GRANTED ON CONDITION THAT THE PROPOSED RESPONSIVE PLEADING IS LODGED PRIOR TO THE HEARING. DEFENDANT HOVEN BADEMYAN IS TO PRESENT PROOF OF LODGING OF THE RESPONSIVE PLEADING TO THE COURT AT THE HEARING.

SERVICE:                              

[X] Proof of Service Timely Filed (CRC 3.1300) OK

[X] Correct Address (CCP 1013, 1013a) OK

[X] 16/21 Day Lapse (CCP 12c and 1005 (b)) OK

SUMMARY OF COMPLAINT: Action for discrimination on the basis of disability.

REQUEST FOR RELIEF: Vacate default and default because Defendant did not receive notice of this action and service was not effectuated at any address associated with Defendant.

OPPOSITION: None filed as of August 26, 2022.

REPLY: None filed as of August 26, 2022.

ANALYSIS:

Plaintiff Shahbaz Law Group, APC (“Plaintiff”) filed the instant action against Defendant Hovek Bademyan (“Defendant Bademyan”) and Victoria Babakian on April 29, 2019. Following Defendants failure to respond to the Complaint, the Court entered their default on December 18, 2019 and default judgment on July 2, 2021.

Defendant Bademyan filed the instant Motion to Vacate Default and Default Judgment on July 22, 2022. No opposition has been filed to date.

Discussion

The Motion is brought pursuant to Code of Civil Procedure section 473.5, subdivision, which provides in relevant part:

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.

(Code Civ. Proc., § 473.5, subd. (a).) Additionally, the motion “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.” (Code Civ. Proc., § 473.5, subd. (b).)

The Motion was timely filed one year after entry of default judgment. The Motion is also accompanied by an affidavit in which Defendant Bademyan declares that service of the Summons and Complaint did not result in actual notice of this action and that Defendant’s lack of notice was not caused by avoidance of service or inexcusable neglect. (Motion, Bademyan Decl., ¶¶2-5.) The proof of service of Summons and Complaint filed on July 18, 2019 states that Defendant Bademyan was sub-served at 731 S. Louise Street, Glendale, California. (Proof of Service, filed 07/18/19, ¶¶3-5.) However, because the proof of service is not attested to by a registered process server, it is not entitled to a presumption of truth in its contents. (See Cal. Evid. Code, § 647; Proof of Service, filed 07/18/19, ¶7.)

Defendant Bademyan declares that he has no association with the service address, and never encountered anyone attempting to serve papers. (Motion, Bademyan Decl., ¶¶2-4.) Defendant Bademyan has lived in Tarzana for all relevant time periods. (Id. at ¶2 and Exh. G.) Nor did Defendant live at 6524Wibur Avenue 203 Reseda, California, where the request for entry of default and default judgment were mailed. (Id. at ¶¶2-6 and Exh. G.) This evidence is sufficient to demonstrate that Defendant Bademyan did not receive actual notice of this action from the purported service of the Summons and Complaint. Nor has Plaintiff filed any opposition to demonstrate that service on Defendant Bademyan resulted in actual notice of this action.

While the Court notes that the Motion is not accompanied by a copy of the proposed responsive pleading, as required by the moving statute, this can be corrected at the time of the hearing. (Code Civ. Proc., § 473.5, subd. (b); Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 403.)

Conclusion

Defendant Hovek Bademyan’s Motion to Vacate Default and Default Judgment is GRANTED ON CONDITION THAT THE PROPOSED RESPONSIVE PLEADING IS LODGED PRIOR TO THE HEARING. DEFENDANT HOVEN BADEMYAN IS TO PRESENT PROOF OF LODGING OF THE RESPONSIVE PLEADING TO THE COURT AT THE HEARING.

Moving party to give notice.