Judge Mark E. Windham, Case Number: 22STLC04209, Date: 2024-08-01 Tentative Ruling

If you desire to submit on the tentative ruling, you may do so by e-mailing Dept. 26 at the Spring Street Courthouse until the morning of the motion hearing.

The e-mail address is SSCdept26@lacourt.org

The heading on your e-mail should contain the case name, number, hearing date, and that you submit. The message should indicate your name, contact information, and the party you represent. Please note, the above e-mail address is to inform the court of your submission on the tentative ruling. All other inquiries will not receive a response.

If there are no appearances by either side and no submission on the Court's tentative ruling, the matter will be placed OFF CALENDAR.

Due to overcrowding concerns of COVID-19, all parties shall make every effort to schedule a remote appearance via LACourtConnect (https://my.lacourt.org/laccwelcome) for their next hearing. The parties shall register with LACourtConnect at least 2 hours prior to their scheduled hearing time.

Interinsurance Exchange v. Demirjian, et al.

MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT; QUASH SERVICE

Defendants Harotun Demirjian and Stacy Martin’s Motion to Vacate Default and Default Judgment is GRANTED.

Defendants Harotun Demirjian and Stacy Martin’s Motion to Quash Service of the Summons and Complaint is GRANTED AS TO DEFENDANT MARTIN AND CONTINUED AS TO DEFENDANT DEMIRJIAN TO OCTOBER 31, 2024 AT 10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. BY OCTOBER 3, 2024, DEFENDANT DEMIRJIAN IS TO FILE AND SERVE AN AMENDED DECLARATION IN CONFORMITY WITH THE STATUTORY REQUIREMENTS.

On June 23, 2022, Plaintiff Interinsurance Exchange of the Automobile Club (“Plaintiff”) filed the instant action against Defendants Haroutun Demirjian (“Defendant Demirjian”) and Stacy Martin (“Defendant Martin”). When Defendants failed to file a responsive pleading, Plaintiff obtained their default on October 11, 2023. Default judgment was entered against Defendant Demirjian on December 7, 2023 and against Defendant Martin on December 21, 2023. Notice of entry of judgment was served on Defendants on April 8, 2024. (Proof of Service, filed 04/08/24.)

On June 7, 2024, Defendants filed the instant Motion to Quash Service of Summons and Motion to Vacate Default and Default Judgment. No opposition has been filed to date.

Defendants move for relief on equitable grounds. Specifically, that Plaintiff’s counsel’s conduct amounted to extrinsic fraud when they sought to obtain default following defective service and without informing defense counsel. The Court has inherent, equitable power to set aside a judgment on the ground of “extrinsic fraud or mistake.” (Sporn v. Home Depot USA, Inc. (2005) 126 Cal. App 4th 1294, 1300). Extrinsic fraud “tends to encompass almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing.” (Estate of Snaders v. Sutton (1985) 40 Cal 3d 607, 614.)

Defense counsel submits a declaration explaining that they have been in communication with Plaintiff’s counsel since June 9, 2023, at which time they expressed that service on both Defendants was defective. (Motion, Matevosian Decl., ¶¶6-8.) Defense counsel also informed Plaintiff’s counsel that Defendant Demirjian was an active duty servicemember and explained that his information would not appear on the Servicemembers Civil Relief Act (“SCRA”) website because he has a secret government clearance. (Id. at ¶¶10-12.) Also, prior to Plaintiff’s second submission for entry of default in October 2023, defense counsel made a settlement offer and was informed by Plaintiff’s counsel that the offer would be communicated to Plaintiff. (Id. at ¶¶14-16.) Instead of responding to the settlement offer, however, Plaintiff filed another request for entry of default on October 11, 2023 without informing defense counsel. The requests for entry of default were again served to addresses Plaintiff’s counsel had been informed were defective, thereby depriving Defendants of the opportunity to address the requests for entry of default. The Court finds that these facts demonstrate a basis for granting Defendants equitable relief from the default and default judgment. By failing to communicate with defense counsel to address the issue of defective service and Defendants’ settlement offer, Plaintiff deprived Defendants of an opportunity to respond to the action on the merits.

Furthermore, the Court finds Plaintiff’s counsel’s conduct violated well-known ethical obligations:

“[I] is now well-acknowledged that an attorney has an ethical obligation to warn opposing counsel that the attorney is about to take an adversary's default. (Id. at pp. 701-702, 84 Cal.Rptr.3d 351.)

In that regard we heartily endorse the related admonition found in The Rutter Group practice guide, and we note the authors' emphasis on reasonable time: “Practice Pointer: If you're representing plaintiff, and have had any contact with a lawyer representing defendant, don't even attempt to get a default entered without first giving such lawyer written notice of your intent to request entry of default, and a reasonable time within which defendant's pleading must be filed to prevent your doing so.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2008) § 5:73, p. 5-19 (rev. #1, 2008) as quoted in Fasuyi, supra, 167 Cal.App.4th at p. 702, 84 Cal.Rptr.3d 351.)”

(Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 135.) Here, Plaintiff’s counsel was in communication with defense counsel regarding this action since June 2023 but did not inform defense counsel of the request for entry of default filed in October 2023.

Based on the foregoing, Defendants’ Motion to Vacate Default and Default Judgment is granted.

Defendants move to quash service of the Summons and Complaint pursuant to Code of Civil Procedure section 418.10 on the grounds that the service address, 445 W. Wilson Avenue, #E/1, Glendale, California, was not proper as to either of them.

“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.) 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.) The party seeking to defeat service of process must present sufficient evidence to show that the service did not take place as stated. (See Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1428; cf. People v. Chavez (1991) 231 Cal.App.3d 1471, 1483 [“If some fact be presumed, the opponent of that fact bears the burden of producing or going forward with evidence sufficient to overcome or rebut the presumed fact.”].) Merely denying service took place without more is insufficient to overcome the presumption. (See Yadegar, supra, 194 Cal.App.4th at 1428.)

The supporting declaration of Defendant Dermirjian, however, is not properly attested as required by Code of Civil Procedure section 2015.5. A declaration must recite “recites that it is certified or declared by him or her to be true under penalty of perjury, is subscribed by him or her, and (1), if executed within this state, states the date and place of execution, or (2), if executed at any place, within or without this state, states the date of execution and that it is so certified or declared under the laws of the State of California.” (Code Civ. Proc., § 2015.5.) Defendant Demerjian only declares “under penalty of perjury under the laws of the United States that the foregoing is true and correct.” (Motion to Quash, Demerjian Decl., p. 1:26-27.) Defendant Demerjian, therefore, has not shown a basis to quash service of the Summons and Complaint.

Defendant Martin’s declaration is properly attested and states that at the time of service on March 27, 2023, they did not reside at 445 W. Wilson Avenue, #E/1, Glendale, California. (Motion to Quash, Martin Decl., ¶¶4-9 and Exhs. C-E.) Although the proof of service of the Summons and Complaint is signed by a registered process server, Defendant Martin’s declaration presents sufficient evidence to show that the service did not take place as stated. (See Proof of Substitute Service, filed 04/05/24, ¶7.) Plaintiff has not filed any opposition to dispute Defendant Martin’s declaration. Therefore, the Motion to Quash is granted as to Defendant Martin.

Based on the foregoing, Defendants Harotun Demirjian and Stacy Martin’s Motion to Vacate Default and Default Judgment is GRANTED.