Judge: Melvin D. Sandvig, Case: 23CHCV02319, Date: 2024-06-28 Tentative Ruling

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Case Number: 23CHCV02319    Hearing Date: June 28, 2024    Dept: F47

Dept. F47

Date: 6/28/24

Case #23CHCV02319

MOTION TO SET ASIDE DEFAULT

Motion filed on 5/15/24.

MOVING PARTY: Defendant Maryam Soheili

RESPONDING PARTY: Plaintiff Marco A. Rodriguez

NOTICE: ok

RELIEF REQUESTED: An order setting aside the default entered against Defendant Maryam Soheili on 11/27/23 and allowing Defendant to file an answer to the complaint. 

RULING: The motion is granted.  Defendant Maryam Soheili is ordered to separately file her Answer to the Amended Complaint which is attached to the motion as Ex.F.

SUMMARY OF FACTS & PROCEDURAL HISTORY

This action arises from Plaintiff Marco A. Rodriguez’s (Plaintiff) claim that a wrought iron fence and pillar from the neighboring property, owned by Defendant Maryam Soheili (Defendant), are encroaching on his property.  Plaintiff’s operative Amended Complaint contains causes of action against Defendant for: (1) Injunction to Remove Continuing Encroachment and (2) Injunction to Abate Continuing Nuisance. 

On 10/16/23, Plaintiff filed a proof of service which indicates that Defendant was served by substituted service at 17603 Sunburst Street, Northridge, CA 91325 on 8/18/23 at 7:22 pm by leaving the Amended Summons, Amended Complaint and various other documents with “Maryam ‘Jane Doe’ Soheili, claimed she was not defendant Maryam Soheili after she had already claimed she was.”  (See Proof of Substituted Service filed 10/16/23).  On 10/16/23, the documents were mailed to the same address where the substituted service was effected.  Id. 

On 11/27/23, default was entered against Defendant.  After attempts to have Plaintiff stipulate to have the default set aside failed, on 5/15/24, Defendant filed and served the instant motion seeking an order setting aside the default entered against Defendant on 11/27/23 and allowing Defendant to file an answer to the complaint.  (See McCall Decl).  Plaintiff has opposed the motion and Defendant has filed a reply to the opposition. 

ANALYSIS

The opposition seems to argue that Defendant had actual notice of the lawsuit because she was personally served with same in August of 2023.  While the process server has declared: “I know it was [Defendant] because Defendant identified her self [sic] as Maryam and instructed to drop the documents in the mail box [sic] right before service.  Claimed after she was not Maryam,” the process server still marked the box indicating that Defendant was served with the amended summons and amended complaint in this matter by substituted service, not by personal service.  (See Proof of Service filed 10/16/23 and Declaration attached thereto). 

CCP 473(b) is to be liberally construed with any doubts as to the propriety of setting aside the default to be resolved in favor of deciding an action on the merits.  Berman (1971) 17 CA3d 900, 910; Mink (1992) 2 CA4th 1338, 1343.  Therefore, the Court finds that it must view the contradiction within the proof of service in favor of Defendant.  As such, the Court finds that Defendant was served by substituted service (i.e., the documents were not delivered to Defendant) which was not complete until 10 days after mailing on 10/16/23.  CCP 415.20(b). 

Plaintiff does not refute that Defendant was out of the country at the time service was complete in October 2023 or that Defendant did not return home/to the United States until mid-December 2023 which was after the default was entered on 11/27/23.  (See Soheili Decl. ¶11; Rastegar Decl. ¶¶4-6); (Opposition, generally).  Based on the foregoing, the Court finds that Defendant did not have actual notice of the action in time to defend.  CCP 473.5.  Alternatively, Defendant has made a sufficient showing that the default was entered as a result of mistake, inadvertence, surprise and/or excusable neglect.  CCP 473(b).  Similarly, the Court finds that Defendant has made a sufficient showing that she failed to discover the documents had been mailed to her until late January/early February 2024 as a result of excusable neglect.  (Soheili Decl. ¶12). 

The Court also finds that Defendant and her attorney acted reasonably in seeking to informally have the default set aside and filing the instant motion once their efforts proved unsuccessful.  As such, the motion was timely filed within 6 months of the entry of default.  See CCP 473(b); CCP 473.5(a) 

The Court finds that sanctions against Defendant are not warranted as Plaintiff could have avoided the fees and costs incurred in opposing the motion by stipulating to have the default set aside considering Plaintiff’s proof of service shows that the Defendant was served by substituted service which was not complete until Defendant was out of the country and default was entered before Defendant returned.

CONCLUSION

The motion is granted.  Defendant is ordered to separately file her answer to the Amended Complaint on or before 7/1/24.