Judge: Melvin D. Sandvig, Case: 22CHCV00078, Date: 2022-12-12 Tentative Ruling

Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assisant in North Valley Department F47, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2247.  Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and specially pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org. All hearings on law and motion and other calendar matters are generally NOT transcribed by a court reporter unless one is provided by the party(ies).

Case Number: 22CHCV00078    Hearing Date: December 12, 2022    Dept: F47

Dept. F47

Date: 12/12/22

Case #22CHCV00078

MOTION TO SET ASIDE DEFAULT & DEFAULT JUDGMENT

Motion filed on 8/8/22.

MOVING PARTY: Defendant Robert Mezian

RESPONDING PARTY: Plaintiff JPMorgan Chase Bank, N.A.

NOTICE: ok

RELIEF REQUESTED: An order setting aside the default entered against Defendant on 5/25/22 and the default judgment entered against Defendant on 6/1/22.

RULING: The motion is denied. 

On 2/1/22, Plaintiff JPMorgan Chase Bank, N.A. (Plaintiff) filed this action against Defendant Robert Mezian (Defendant) for common counts (open book account, money lent, money paid) based on money owed by Defendant on a credit card issued by Plaintiff to Defendant.  On 2/9/22, Plaintiff filed a proof of service which indicates that Defendant was personally served on 2/4/22 with the summons and complaint (at the address listed as Defendant’s address on this motion).  Defendant failed to respond to the complaint.  On 5/25/22, Defendant’s default was entered and on 6/1/22 default judgment was entered against Defendant in the amount of $25,015.59.  On 8/8/22, Defendant filed the instant motion seeking an order setting aside the default entered against Defendant on 5/25/22 and the default judgment entered against Defendant on 6/1/22.  Plaintiff has opposed the motion. 

The Court notes that the motion appears to be a sort of form motion wherein a party is supposed to mark certain boxes to designate which grounds and arguments apply to the motion.  Here, Defendant, representing himself, has indicated in the notice of motion that it is based on Defendant’s claims that the service of the summons did not result in actual notice (CCP 473.5) and service of the summons did not result in actual notice in time to defend the action brought by a debt buyer (Civil Code 1788.61).  (See Notice of Motion, p.1:27-p.2:3).  However, in the memorandum of points and authorities, Defendant has failed to mark any of the boxes.  (See Motion, p.3:9-p.8:8).  Therefore, the Court presumes the motion is based only on the grounds set forth in the notice and considers those arguments. 

In order to obtain relief under CCP 473.5, Defendant must include an affidavit showing the party’s lack of notice was not caused by the defendant’s avoidance of service or inexcusable neglect.  See CCP 473.5(b).  Here, Defendant merely states that he did not have actual notice of the action and fails to address the proof of service signed by a registered process server which indicates that Defendant was personally served with the summons and complaint on 2/4/22.  Defendant’s declaration submitted in support of the motion confusingly claims that Defendant was not personally served, but later admits that “[t]he way [he] first learned about this lawsuit was being served with the Summons and Complaint.”  

(See Mezian Decl. ¶¶6, 8).  Additionally, Defendant has failed to provide any facts to support his claim that he was not served.  (Id. ¶7).  Based on the foregoing, Defendant has failed to refute the evidence (i.e., the proof of service) that he was personally served in this action.  As such, Defendant has failed to show that the default and default judgment were not the result of his inexcusable neglect or avoidance of service.  The motion also fails under CCP 473.5 as it is not accompanied by a proposed answer or other pleading proposed to be filed in the action.  CCP 473.5(b).

Civil Code 1788.61 applies to cases brought by debt buyers.  See Civil Code 1788.61(a)(1).  Here, Plaintiff is the original creditor and Defendant’s debt was not sold.  (See  Complaint ¶CC-1.b(6)).  As such, this statute does not apply.     

Based on the foregoing, Defendant has failed to establish any basis to set aside the default and/or default judgment entered against him.