Judge: Melvin D. Sandvig, Case: 23CHCV03442, Date: 2024-10-08 Tentative Ruling

Case Number: 23CHCV03442    Hearing Date: October 8, 2024    Dept: F47

Dept. F47

Date: 10/8/24

Case #23CHCV03442

MOTION TO VACATE DEFAULT JUDGMENT

Motion filed on 3/26/24.

MOVING PARTY: Defendants Ilya Zak DDS, Inc and Ilya Zak

RESPONDING PARTY: Plaintiff Allee Investments, L.P.

NOTICE: ok

RELIEF REQUESTED: An order setting aside and vacating the default entered against Defendants and allowing Defendants to file a responsive pleading.

RULING: The motion is granted.  Defendants are ordered to separately file their answer.

SUMMARY OF ACTION & PROCEDURAL HISTORY

This action arises out of a dispute between a commercial landlord, Plaintiff Allee Investments, L.P. (Plaintiff), and its tenant, Defendant Ilya Zak DDS, Inc. (Zak Inc.), and the tenant’s manager/operator, Defendant Ilya Zak (Zak)  (collectively, Defendants) regarding the alleged failure to pay rent. 

On 11/9/23, Plaintiff filed this action against Defendants for: (1) Breach of Written Contract, (2) Open Book Account and (3) Account Stated.  On 11/15/23, Plaintiff filed proofs of service indicating that the summons and complaint were personally delivered to Ilya Zak on 11/14/23 at 10:30 a.m. at 10501 Lakewood Blvd., Downey, California 90241. 

On 12/19/23, default was entered against Zak.  On 12/20/23, default was entered against Zak Inc.  On 2/7/24, the Court entered default judgment against both Defendants in the amount of $514,871.60.

On 3/26/24, Defendants filed and served the instant motion seeking an order setting aside and vacating the default entered against Defendants and allowing Defendants to file a responsive pleading.  Plaintiff has opposed the motion and Defendants have filed a reply to the opposition. 

ANALYSIS

Plaintiff’s objections (numbers 1-6) to the declaration of Ilya Zak are overruled.

Plaintiff’s objections (numbers 7- ) to the declaration of Angelica Orozco are overruled.

CCP 473.5 provides:

“(a) 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.

(b) 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.

(c) 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.”

Through the declarations of Ilya Zak and Angelica Orozco, Defendants have made a sufficient showing that they did not have actual notice of this action in time to defend the action and that such lack of notice was not caused by Defendants’ avoidance of service or inexcusable neglect.  Both Zak and Orozco have stated under penalty of perjury that Zak was not present at the location on the date the purported personal service of the summons and complaint took place.  Additionally, both Zak and Orozco state under penalty of perjury that they were not aware of this action until 2/29/24 when notice of the 2/7/24 default judgment was received in the mail. 

The only evidence Plaintiff has to refute the foregoing are the proofs of service signed by the process server on 11/14/23 contending that the process server personally delivered the documents to Zak on that date.  Plaintiff has not offered a subsequent declaration from the process server attesting to such service, describing the person to whom the documents were purportedly delivered, etc.  Additionally, Plaintiff offers no evidence (i.e., expert declaration) to support the conclusory statement in the opposition that “the supposition that Dr. Zak, a dentist, was practicing his craft (that would presumably require personal attention/in office visitation) via remote transmission from Santa Monica, CA seems dubious at best.”  In fact, since the Covid-19 pandemic, it is common knowledge that certain appointments (i.e., medical, dental, court appearances) which previously could only be conducted in person are now routinely conducted virtually.  Further, the reply explains that due to patient privacy additional corroborating evidence of the virtual appointments conducted by Dr. Zak at his home in Santa Monica on 11/14/23 could not be provided. 

Defendants also timely filed this motion within a month of learning of the default judgment and within 2 months of the entry of the default judgment.  While Defendants inadvertently failed to include a copy of the proposed answer with the motion, Defendants cured this defect by lodging a copy of their proposed answer on 10/1/24.

Under the circumstances, the Court does not find that Plaintiff is entitled to an award of fees and costs, especially in the exorbitant amount of $60,270.00 requested in the opposition. 

CONCLUSION

The motion is granted.  The default judgment entered on 2/7/24 and the underlying defaults entered against Defendants are vacated.  Defendants are ordered to separately file their answer.  Plaintiff’s request for an award of attorney’s fees and costs is denied.