Judge: Mark E. Windham, Case: 22STLC01748, Date: 2022-09-14 Tentative Ruling

Case Number: 22STLC01748    Hearing Date: September 14, 2022    Dept: 26

MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT

(CCP § 473.5)

TENTATIVE RULING:

Defendant Barry Wishengrad’s Motion to Vacate Default and Default Judgment is DENIED.

Defendant Wish Automotive II, Inc.’s Motion to Vacate Default and Default Judgment is DENIED.

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 because Defendants did not receive notice of this action and service was effectuated at the wrong zip code.

OPPOSITION: None filed as of September 12, 2022.

REPLY: None filed as of September 12, 2022.

ANALYSIS:

Plaintiff Richard Dahl (“Plaintiff”) filed the instant action against Defendants Wish Automotive II, Inc. (“Defendant Wish II”) and Barry Wishengrad (“Defendant Wishengrad”) on March 16, 2022. Following Defendants’ failure to respond to the Complaint, the Court entered default on May 19, 2022 and default judgment on June 16, 2022.

Defendants filed the instant Motions to Vacate Default on July 21, 2022. No opposition has been filed to date.

Discussion

The Motions are 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 Motions were filed approximately two months after entry of default and five weeks after default judgment. The Court finds this to be a reasonable amount of time following entry of default and default judgment.

Defendant Wishengard declares that he never received a copy of the Summons and Complaint, which were left with the receptionist at 5545 Van Nuys Blvd., Los Angeles, California on March 21, 2022 and thereafter mailed to the same address on March 28, 2022. (Wishengard Motion, Wishengard Decl., ¶¶2-7.) The declaration offers no explanation as to why Defenadnt Wishengard did not receive the papers from either the receptionist or in the mail. (Ibid.) This is not sufficient to demonstrate a basis for the Court to exercise its discretion to vacate the entry of default and default judgment. A conclusory declaration with no supporting facts does not satsify a moving defendant’s burden under Code of Civil Procedure section 473.5. (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 509 [citing Rios v. Singh (2021) 65 Cal.App.5th 871, 885].) Therefore, Defendant Wishengrad’s Motion to Vacate Default and Default Judgment is DENIED.

The Motion brought on behalf of Defendant Wish II likewise does not include facts showing that Defendant Wish II lacked actual notice of this action. Wish II’s attorney and agent for service of process, Michael Barmasse, declares that he was served with a separate lawsuit against another entity for which Defendant Wishengrad is the president: Wish Automotive, Inc. (Wish Motion, Barmasse Decl., p. 6:5-9.) Barmasse goes on to state that Plaintiff’s counsel was aware he is the agent for service of process for the Wish entities and could have been served with the papers in this action. (Id. at p. 6:24-27.) This, however, does not explain why service on the receptionist at 5452 Van Nuys Blvd., Los Angeles, California on March 24, 2022 did not result in actual notice of the action to Defendant Wish II. (See Proof of Substitute Service, filed 05/19/22, ¶¶3-5.) As Defendant Wish II has also failed to carry its burden of proof with respect to relief under Code of Civil Procedure section 473.5, its Motion to Vacate Default and Default Judgment is DENIED.

Conclusion

Defendant Barry Wishengrad’s Motion to Vacate Default and Default Judgment is DENIED.

Defendant Wish Automotive II, Inc.’s Motion to Vacate Default and Default Judgment is DENIED.

Court clerk to give notice.