Judge: Maurice A. Leiter, Case: 24STCV04758, Date: 2025-01-14 Tentative Ruling

Case Number: 24STCV04758    Hearing Date: January 14, 2025    Dept: 54

Hearing Date: January 14, 2025

Department 54, Judge Maurice Leiter

Motion to Set Aside Entry of Default

Moving Party: Defendant Pil Soo Lee

Responding Party: Plaintiffs Lucia Lovos and Jose Ernesto Hernandez Huezo

T/R:     THE MOTION TO SET ASIDE ENTRY OF DEFAULT IS DENIED.

DEFENDANT TO NOTICE.

            The Court considers the moving papers and opposition.

If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:30 am on the day of the hearing. 

BACKGROUND

On February 27, 2024, Plaintiffs Lucia Lovos and Jose Ernesto Hernandez Huezo filed a Complaint against Defendant Pil Soo Lee for: (1) Breach of Warranty of Habitability; (2) Breach of Covenant of Quiet Enjoyment; (3) Negligence; and (4) Breach of Contract.

On August 27, 2024, this Court entered default against Defendant Lee.

Defendant Lee moves for an order setting aside the entry of default entered against him.

ANALYSIS

“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).)¿¿¿ 

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“A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it 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).)¿ 

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“Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.” (Code Civ. Proc., § 473.5, subd. (c).)¿ 

A.    Motion to Set Aside Entry of Default

Defendant Lee asserts he was never served the summons and complaint. (Lee Decl., ¶2.) He argues that the description of the party served by personal service on July 25, 2024 does not match his physical description. (Id. at ¶¶3-5, Ex. 1.) Defendant Lee also contends that he and Plaintiffs resided at the same residence and shared the same mailbox, and Plaintiffs could check the mail before he would see anything. (Id. at ¶10.)

In opposition, Plaintiffs argue the declaration submitted by Defendant Lee lacks sufficient facts showing lack of actual notice. Plaintiffs also argue that Defendant Lee does not explain how he discovered this lawsuit on December 2, 2024. And Plaintiffs contend Defendant Lee’s motion fails to meet the requirements of Code of Civil Procedure § 473.5, subdivision (b) because a copy of the Answer or other pleading was not served and filed with it.

“[T]he reference in Code of Civil Procedure section 473.5 to ‘actual notice’ means genuine knowledge of the party litigant and does not contemplate notice imputed to a principal from an attorney's actual notice.” (Rosenthal v. Garner (1983) 142 Cal.App.3d 891, 895.) Defendant Lee has provided his driver’s license, which indicates he is an 87-year old, Asian Male, Height: 5’4, and Weight: 110Ibs. (Lee Decl., ¶¶5-6, Ex. 2.) The proof of service indicates that a 50-year old, Asian Male, Height: 5’11, and Weight: 165Ibs was served at 236 South Rampart Boulevard, Los Angeles, CA. Defendant Lee does not dispute he resides at the property where service was effectuated. The driver’s license provided by Defendant Lee indicates the Subject Property is his residence. (Lee Decl., Ex. 2).

Defendant Lee seems to suggest that Plaintiffs concealed or mishandled his mail including the service of summons and complaint, and notice of entry of default. But there are insufficient facts to support this contention. He has failed to show a lack of actual notice in time to defend this lawsuit. In addition, Defendant Lee failed to file and serve a copy of his proposed Answer or other responsive pleading with the present motion as required under statute.

Defendant’s Motion to Set Aside Entry of Default is DENIED.