Judge: Melvin D. Sandvig, Case: 24CHCV00209, Date: 2025-03-24 Tentative Ruling

Case Number: 24CHCV00209    Hearing Date: March 24, 2025    Dept: F47

Dept. F47

Date: 3/24/25

Case #24CHCV00209

MOTION TO VACATE DEFAULT

Motion filed on 9/30/24.

MOVING PARTY: Defendants Hrag Saliban and Shoushan Saliban

RESPONDING PARTY: Plaintiff Ashley Williams

NOTICE: ok

RELIEF REQUESTED: An order vacating the default entered against Defendants Hrag Saliban and Shoushan Saliban in this action on 4/17/24.

RULING:

The motion is granted as set forth below. 

SUMMARY OF FACTS & PROCEDURAL HISTORY

On 1/22/24, Plaintiff Ashley Williams (Plaintiff) filed this action against Defendants Hrag Saliban and Shoushan Saliban (Defendants) for: (1) Tenant’s Initial Inspection Before Move Out (Civil Code Section 1950.5(f)(1)); (2) Tenant’s Initial Inspection Before Move Out (Civil Code Section 1950.5(f)(2)-(3)); (3) Negligence and (4) Constructive Eviction. 

On 4/17/24, Plaintiff filed proofs of service indicating that Defendants were personally served on 1/24/24 at 23919 Lakeside Road, Valencia, CA 91355.  (See Proofs of Service filed 1/24/24).  On 4/17/24, Plaintiff’s Request for Entry of Default was entered against Defendants.  (See 4/17/24 Request for Entry of Default).

On 9/30/24, Defendants filed and served the instant motion seeking an order vacating the default entered against them on 4/17/24.  The motion was originally scheduled for hearing on 3/11/25 but was continued by the Court to 3/24/25.  (See 2/7/25 Notice of Continuance & Order).  Plaintiff has not opposed or otherwise responded to the motion. 

ANALYSIS

Defendants seek relief under Code of Civil Procedure Section 473(b) on the ground that the default was entered against them through their surprise (i.e., they were unaware of the action).  See Code of Civil Procedure Section 473(b).  Additionally, Defendant seeks relief based on Plaintiff’s extrinsic fraud.  To obtain relief based on extrinsic fraud, Defendants must show: (1) Defendants have a meritorious defense; (2) Defendants have a satisfactory excuse for not presenting a timely defense and (3) Defendants acted diligently in seeking to have the default set aside after discovering same.  See Moghaddam (2006) 142 CA4th 283, 290.      

Defendants claim that despite the proofs of service claiming that they were personally served, they were not.  (See Hrag Saliban Declaration; Shoushan Saliban Declaration).  Defendants state that they first became aware of this action and the default entered against them in September 2024 and then promptly retained counsel.  Id.  Defendants  attempted to informally resolve the issue by having Plaintiff stipulate to have the default set aside; however, Plaintiff stopped responding to Defendants’ counsels’ communications.  Therefore, Defendants filed and served the instant motion for relief on 9/30/24.

Defendants also point out errors in the proofs of service which Defendants claim make the proofs of service defective (i.e., the proofs of service indicate that Plaintiff who is representing herself in this action is the attorney for “Plaintiff, Juan Martinez); the proofs of service list the Plaintiff/Petitioner as “Michelle Kee.”

Given the unrefuted evidence presented with the motion and the fact that the proofs of service are not executed by a registered process server, the Court finds that Defendants are entitled to relief from the default entered against them.

CONCLUSION

The motion is granted.  Defendants are ordered to separately file their Answer which is attached to the motion.

The Court also notes that in violation of California Rules of Court, Rule 3.1110(f)(4) Defendants’ counsel has failed to electronically bookmark the exhibits attached to the motion.  Counsel is warned that failure to comply with this rule in the future may result in matters being continued so that papers can be resubmitted in compliance, papers not being considered and/or the imposition of sanctions.