Judge Mark E. Windham, Case Number: 20STLC01404, Date: 2023-10-05 Tentative Ruling

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Prime Point Contracting, Inc. v. Dulbenchyan, et al.

VACATE DEFAULT AND DEFAULT JUDGMENT; QUASH SERVICE

(CCP §§ 418.10, 473(b), 473.5, 473(d))

Defendant Araksya Dulbenchyan’s Motion to Vacate Default and Default Judgment, If Entered, and Motion to Quash Service is DENIED.

On February 13, 2020, Plaintiff Prime Point Contracting, Inc. (“Plaintiffs”) filed the instant action for motor vehicle negligence against Defendant Araksya Dulbenchyan (“Defendant”). On the same date, Plaintiff filed a notice of related case with respect to small claims case LASC No. 19VESC06412 (“the Small Claims case”). (Notice of Related Case, filed 02/13/20.) The Small Claims case was transferred to Department 26 in the Spring Street Courthouse on February 14, 2020. (LASC No. 19VESC06412, Application and Order for Transfer, 02/14/20.)

Plaintiff filed proof of personal service of the Summons and Complaint in this action on February 15, 2022. When Defendant failed to file a responsive pleading, Plaintiff obtained their default on June 6, 2022. The Court set an Order to Show Cause re: Entry of Default or Dismissal, which was continued multiple times. At the Order to Show Cause on April 13, 2023, Defendant appeared and indicated they would move to vacate default.

On September 11, 2023, Defendant filed the instant Motion to Vacate Default and Quash Service. The motion came for hearing on October 5, 2023 at which time both parties appeared. (Minute Order, 10/05/23.) At Plaintiff’s request, the Court continued the hearing to November 7, 2023. (Minute Order, 10/05/23.) Plaintiff served an opposition on October 26, 2023, which it filed the next day. (Opp., filed 10/27/23, p. 42.) The Motion came for hearing on November 7, 2023 and was continued to December 5, 2023 with notice given by the Court. (Minute Order, 11/07/23.)

Defendant moves to vacate the entry of default pursuant to Code of Civil Procedure section 473, subdivision (b), section 473.5, or Code of Civil Procedure section 473, subdivision (d).

Under Code of Civil Procedure section 473, subdivision (b), an application for relief must be made no more than six months after entry of the order from which relief is sought and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) The motion must also be accompanied by a copy of the moving defendant’s proposed pleading. (Code Civ. Proc., § 473, subd. (b).) This can be corrected if Defendant submits a proposed responsive pleading by the hearing date. (Code Civ. Proc., § 473, subd. (b); Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 403.)

The instant Motion was not timely filed within six months of entry of default on June 6, 2022. The six-month deadline is jurisdictional and not subject to tolling. (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.) Therefore, Defendant cannot obtain relief under Code of Civil Procedure section 473, subdivision (b).

The Motion is also brought under Code of Civil Procedure section 473.5, subdivision (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.

(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).) Defendant’s Motion is timely under this statute and they contend they did not receive actual notice in time to defend the action. (Motion, Dulbenchyan Decl., ¶8.) However, the declaration does not state that Defendant’s lack of actual notice was not caused by avoidance of service or inexcusable neglect, nor is the Motion accompanied by a copy of Defendant’s proposed responsive pleading. Both of these are required before the Court can grant relief under Code of Civil Procedure section 473.5.

Finally, Defendant moves to vacate the default on grounds that it is void, pursuant to Code of Civil Procedure section 473, subdivision (d), which states that “[t]he court may, .... on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc., § 473, subd. (d).) The Motion points to Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1116, which holds that the limitations period contained in Code of Civil Procedure section 473.5 applies by analogy to motions brought under Code of Civil Procedure section 473, subdivision (d). As noted above, the Motion is timely under Code of Civil Procedure section 473.5. Defendant contends that the entry of default is void due to defective service, which was the same ground raised in Rogers. In support, Defendant submits a declaration disputing that service occurred as stated in the proof of personal service filed on February 15, 2022.

“When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.’” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413; see also Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1160.) However, a proof of service containing a declaration from a registered process server invokes a rebuttable presumption affecting the burden of producing evidence of the facts stated in the return. (Cal. Evid. Code, § 647; see American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390.)

Here, the challenged proof of service is not attested to by a registered process server, and therefore, is not entitled to a presumption of truth in its contents. (Proof of Personal Service, filed 02/15/22 ¶7e.) The burden to prove the facts requisite to an effective service, therefore, falls to Plaintiff. The proof of service is attested to by Melanie Simon, who declares that they personally delivered the Summons and Complaint on Defendant at 6230 Sylmar Avenue, Van Nuys, California 91401 “(in the hallway outside Department P)” on February 14, 2020 at 8:45 am. (Id. at ¶¶4-5.) Simon also submits a declaration in support of the opposition stating that they accompanied Plaintiff’s attorney Jesse Terrell to the small claims court and served Defendant in the hallway of the Van Nuys courthouse after the hearing on February 14, 2020. (Opp., Simon Decl., ¶2.) In the Motion, Defendant denies that they were served with the papers on February 14, 2020 in the hallway outside the small claims courtroom. (Motion, Dulbenchyan Decl., ¶8.) Defendant, however, admits to being at the location of service on the date and time service purportedly took place and meeting with Plaintiff’s other attorney, Mainak D’Attaray. (Ibid.) Defendant’s declaration does not match the facts in the Court’s record. The Court takes judicial notice of the order entered in LASC No. 19VESC06412 on February 14, 2020, noting an appearance on behalf of Plaintiff by Attorney Terrell, not Attorney D’Attaray. (LASC No. 19VESC06412 Minute Order, 02/14/20.) Attorney D’Attaray also provides a declaration in support of the opposition denying being at the small claims court on February 14, 2020. (Opp., D’Attaray Decl., ¶2.)

Accordingly, the Court finds Attorney Terrell’s declaration of service credible and that Defendant’s version of the events on the date of service does not demonstrate that the entry of default was void and should be vacated under Code of Civil Procedure section 473, subdivision (d). Defendant’s motion to vacate the entry of default is denied. Likewise, Defendant’s request to quash service of the Summons and Complaint pursuant to Code of Civil Procedure section 418.10 is denied.

Defendant Araksya Dulbenchyan’s Motion to Vacate Default and Default Judgment, If Entered, and Motion to Quash Service is DENIED.