Judge: Melvin D. Sandvig, Case: 23CHCV00417, Date: 2025-01-21 Tentative Ruling

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Case Number: 23CHCV00417    Hearing Date: January 21, 2025    Dept: F47

Dept. F47

Date: 1/21/25

Case #23CHCV00417

MOTION TO SET ASIDE DEFAULT JUDGMENT

Motion filed on 12/2/24.

MOVING PARTY: Defendant Pete Karaiskos

RESPONDING PARTY: Plaintiff Rosalinda Kramer as Trustee for the Rosalinda L. Kramer Family Trust

NOTICE: ok

RELIEF REQUESTED: An order vacating and setting aside the default judgment entered against Defendant Pete Karaiskos on 10/6/23 and any judgment prior to that date and subsequent to Defendant’s eviction.

RULING: The motion is denied.

SUMMARY OF FACTS & PROCEDURAL HISTORY

On 2/15/23, Plaintiff Rosalinda Kramer as Trustee for the Rosalinda L. Kramer Family Trust (Plaintiff) filed this unlawful detainer action against Defendant Pete Karaiskos (Defendant) regarding residential property located at 21330 Kickapoo Trail, Chatsworth, California 91311 (the Property). 

On 3/18/23, Defendant was personally served with the summons and complaint, among other documents, at the Property.  (See Proof Service filed 3/30/23).  On 3/20/23, default was entered against Defendant.  On 4/12/23, default judgment for possession only was entered against Defendant.  On 4/13/23, the Court denied Defendant’s Ex Parte Application for Order Staying the Judgment.  (See 4/13/23 Minute Order).  On 10/6/23 Default Judgment for past-due rent, holdover damages, attorney fees and costs was entered against Defendant in the total amount of $30,840.50. 

On 12/2/24, Defendant filed a Notice of Change of Address (served on 11/28/24) and the instant motion seeking an order vacating and setting aside the default judgment entered against Defendant on 10/6/23 and any judgment prior to that date and subsequent to Defendant’s eviction (served on 11/26/24).  On 12/2/24, Plaintiff filed (served on 12/1/24) an opposition to the motion.  A reply to the opposition has not been filed. 

ANALYSIS

Although titled as “Declaration In Support of Motion for Relief From Default Judgment,” the notice of motion indicates that Defendant seeks to have the default judgment set aside pursuant to CCP 473 because the default judgment was purportedly taken against Defendant without any actual contact with defendant.  (See Motion, pdf 2:1-6).  Later, the points and authorities in support of the motion request that the Court grant the motion pursuant to CCP 473.5 because Defendant purportedly received no actual notice of the action in time to defend, defendant timely filed a motion for relief from default and the default and default judgment were not caused by Defendant’s avoidance of service or inexcusable neglect.  (See Motion, pdf 7:22-8:21).

Defendant contends that the judgment was entered against him due to his inability to attend court in these matters and his claim that he was never notified of any hearings or judgment in this case because notice was sent to the property address despite Plaintiff and Plaintiff’s attorney purportedly having Defendant’s contact information.  (See Motion, pdf 3:26-4:4).  Defendant contends the first time he was aware default judgment had been entered against him was when $8,814.29 had been withdrawn from his bank account.  (Motion, pdf 4:5-6).

Defendant has failed to establish that relief from the defaults and/or default judgments are warranted in this case.

Defendant does not dispute being personally served with the Summons and Complaint in this matter on 3/18/23.  The evidence shows that Defendant had actual notice of the action in time to defend yet Defendant failed to do so.  As such, relief under CCP 473.5 is not available.  See CCP 473.5(a).

Relief is not available under CCP 473(b) as the motion was filed and served more than six months after the entry of default and default judgment.  See CCP 473(b).  Even if the motion had been timely filed and served, Defendant has failed to establish that the default and/or default judgment was entered against him as a result of mistake, inadvertence, surprise or excusable neglect.  As noted above, the evidence shows that Defendant was personally served with the summons and complaint in this matter and Defendant failed to respond resulting in the entries of default and default judgment. 

Defendant seems to be claiming that he did not receive notice of the requests for entry of default and default judgment because they were mailed to the Property address from which he had moved by the time of service.  However, Defendant listed the address where service was made on his 4/13/23 ex parte application and did not file a notice of change of address until 12/2/24 (which was served on 11/28/24).  As such, the notices were properly served on Defendant’s address of record at the time.  Furthermore, there is no requirement that defendant receive a copy of the request for entry of default as long as a mailing declaration certifies that it has been sent.  See CCP 587; Standard Microsystems Corp. (2009) 179 CA4th 868, 899-900.

In addition to the foregoing, the motion also fails under both CCP 473 and CCP 473.5 because it is not accompanied by a copy of the answer or other pleading proposed to be filed.  See CCP 473(b); CCP 473.5(b).

The Court notes that the motion includes a “notice of motion” for a “Motion for Order Staying Execution.”  (See Motion, pdf 5-6).  To the extent that such a motion is being made, it also fails due to lack of supporting authority or evidence. 

CONCLUSION

The motion is denied.