Judge: Mark H. Epstein, Case: 20SMCV01887, Date: 2022-12-22 Tentative Ruling

Case Number: 20SMCV01887    Hearing Date: December 22, 2022    Dept: R

Plaintiff Daniel S. Lee (“plaintiff”) filed this unlawful detainer action against defendant Arthur Yandvich Vugelman (“defendant”).  The matter was reclassified when possession was no longer an issue.  Defendant’s default was entered on August 10, 2021, and the default judgment for damages was entered on November 10, 2021. Currently before the court is defendant’s motion to vacate the default and default judgment.  Plaintiff opposes.

Defendant moves to vacate the default and default judgment against him because he never had actual notice of the action.  Code of Civil Procedure section 473.5, subdivision (a) states that “[w]hen 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.”  “A defendant seeking vacation of a default judgment entered against him must further show that his lack of actual notice in time to defend the action was not caused by his inexcusable neglect or avoidance of service.  (See Code Civ. Proc., § 473.5, subd. (c).)”  (Tunis v. Barrow (1986) 184 Cal.App.3d 1069, 1077–1078.)

Defendant claims that it was impossible to serve him at the address on Wilbur Avenue in Reseda that is listed on the proof of service.  (Vugelman Decl., ¶12.)  He contends that when service was purportedly effectuated in June 2021, the property was in the midst of significant construction and no one did, or could, live there.  (Id. at ¶14.)  “Even to this day, no one resides at the Wilbur Property since there is no certificate of occupancy issued for the Wilbur Property following its effective demolition.”  (Ibid.)  He states that at the time of service, he was living in Van Nuys.  (Id. at ¶21.)  Defendant claims he only became aware of this action after receiving documents from another case and when his attorney searched the case he also generally searched defendant’s name.  (Id. at ¶¶22-24.)   Once his attorney searched his name in late October 2022, this case popped up. (Id. at ¶¶25-26.)  Defendant’s counsel attests that “I discovered this action on October 28, 2022, when I was assisting Defendant to review and analyze an unrelated civil action – LASC Case No. 22STCV33841.  [¶] I conducted a search of that case and also searched Defendant Vugelman’s name to see what that action pertained to.  Upon conducting a name search, this current action was disclosed on the Court’s website.”  (Shamtob Decl., ¶¶4-5.)

In opposition, plaintiff claims the explanation lacks credibility.  Plaintiff claims that UD actions are confidential so there is no way that the court records could have been searched by defendant.  Plaintiff also contends that defendant was properly served, because the steps for substitute service were completed and defendant never informed anyone that he was not staying at the Wilbur property.  Plaintiff further notes that the mail was never returned as undeliverable.  Plaintiff also notes that he mailed defendant various documents by mail between April 2021 and May 2022, and at no point does defendant state he did not get those documents and the documents were also not returned. Plaintiff contends that means defendant had notice.

The key evidence, as defendant notes in reply, is the fact that defendant was not at the Wilbur property in June 2021 and it was under construction.  The proof of service creates a presumption of service but here defendant has rebutted it.  “Evidence Code section 647 provides that a registered process server's declaration of service establishes a presumption that the facts stated in the declaration are true. (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390.)”  (Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750.)  The court is not sure who the process server served, but it is not (at least on this evidence) defendant.  Nor could there be substituted service at a construction site.  It is one thing to leave a document at the defendant’s actual residence with an appropriate person who lives there; it is another to go to a construction site and leave it with a worker who happens to be there.  There is no declaration from the process server that contradicts defendant’s declaration, and that, too, is telling.  The process server should have told plaintiff that the papers were left at a construction site where no one was living (if that was indeed the case).  Had that happened, plaintiff would have undoubtedly made some attempt to find defendant’s actual address.

Plaintiff’s remaining arguments are not convincing. Searching the court website will at least result in notice of a UD action filed against defendant, even if the case documents are not available, and defendant states that an alternative site has the materials (and attached the results from that website in its reply).  Further, the fact that papers were mailed but not returned as undeliverable is not sufficient to show bad faith or call the declaration into doubt.  The court has no information of the Post Office’s track record in terms of returning mail as undeliverable.   (The court notes that it twice sent notices to the defense, and both were returned as undeliverable.) To credit plaintiff the court would need to make a strong inference of bad faith that the evidence does not support, especially where defendant’s declaration offers a plausible reason for the non-receipt of the documents.  There is no showing of inexcusable neglect.  And, of course, public policy strongly favors the resolution of disputes on their merits.

Plaintiff also says that this is really defendant’s fault for not giving plaintiff a forwarding address.  However, the court does not know that there is any statute or law requiring defendant to provide plaintiff with a current address.  The Wilbur address is apparently the address in which defendant resided before entering into the lease here at issue.

In any event, defendant’s showing is sufficient.  The motion is GRANTED. Defendant is ordered to file the answer attached to his motion within 5 court days.