Judge Michael E. Whitaker, Case 20STCV35034 2023-04-12 Tentative Ruling

Judge: Michael E. Whitaker, Case: 20STCV35034, Date: 2023-04-12 Tentative Ruling

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged). Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

Defendants Narine Petrossian (“Petrossian”) and Ara Karapetian (“Karapetian”) (collectively, “Defendants”) through their legal representative, Thomas D. Sands, move to set aside the default and default judgment entered against them. Plaintiff Joshua Messler (“Plaintiff”) opposes the motion.

Under Evidence Code section 452, “[j]udicial notice may be taken of the following matters to the extent that they are not embraced within Section 451: . . . (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States. (d) Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States . . . .” (Evid. Code, § 452, subds. (c)-(d).) And pursuant to Evidence Code section 453, “the trial court shall take judicial notice of any matter specified in Section 452 if a party requests it and: (a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and (b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter. (Evid. Code, § 453, subds. (a)-(b).)

Here, under Evidence Code sections 452 and 453, the Court grants Plaintiff’s unopposed request for judicial notice of the (1) Register of Action (Exhibit 8); (2) Complaint and Amended Complaint (Exhibit 9); (3) Proof of Service of Summons (Exhibit 10) and (4) Motion to Set Aside Judgment (Exhibit 11).

Per Code of Civil Procedure section 473.5, “[w]hen 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 of a written notice that the default or default judgment has been entered.” (Code Civ. Proc., § 473.5, subd. (a).) A notice of motion to set aside a default or default judgment and for leave to defend the action “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.” (Code Civ. Proc., § 473.5, subd. (b).) “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.” (Code Civ. Proc., § 473.5, subd. (c); Tunis v. Barrow (1986) 184 Cal.App.3d 1069, 1077 [“actual notice” means “genuine knowledge of the party litigant” and does not include imputed notice”].)

In Ramos v. Homeward Residential, Inc., the Court of Appeal stated: “It is the policy of the law to favor, whenever possible, a hearing on the merits. Appellate courts are much more disposed to affirm an order when the result is to compel a trial on the merits than when the default judgment is allowed to stand. Therefore, when a party in default moves promptly to seek relief, very slight evidence is required to justify a trial court's order setting aside a default. In the present case, defendant promptly moved to have the default judgment set aside once he learned of it. The trial court's order granting relief was within its sound discretion and, in the absence of a clear showing of abuse of discretion, should not be disturbed. Even in a case where the showing is not strong, or where there is any doubt as to setting aside of a default, such doubt should be resolved in favor of the application.” (Ramos v. Homeward Residential, Inc. (2014) 223 Cal.App.4th 1434, 1444 [cleaned up]; Luxury Asset Lending, LLC v. Philadelphia Television Network, Inc. (2020) 56 Cal.App.5th 894, 907 [“with respect to setting aside a default judgment, it is the policy of the law to favor, whenever possible, a hearing on the merits”].) Against this backdrop, the Court assesses whether Defendants have met their burden.

Here, Plaintiff filed two proofs of service on January 6, 2021, showing that Petrossian and Karapetian were served with the summons via substitute service at 3314 Barnes Circle, Glendale, California 91208 on October 11, 2020, by leaving the summons along with other papers with “Gor Karapetian, Son & Co-Occupant.” Thereafter, based upon the requests of Plaintiff, the Court entered defaults against Defendants on January 21, 2021. Following the entries of default, default judgment was entered against Defendants on March 9, 2022.

First, the default judgment was entered on March 9, 2022 and Defendants filed the instant motion on January 27, 2023. Plaintiff challenges the timeliness of the motion under Section 473.5 claiming that the “Abstract of Judgment” should constitute notice of entry of judgment. Plaintiff in part grounds his argument on Petrossian receiving a “notice of lien” (date uncertain) which Plaintiff asserts (without any support) would have occurred on or about April 6, 2022. And per Plaintiff’s arguments, Defendants’ motion is untimely as it was not filed within 180 days of the purported notice. The Court finds Plaintiff’s contentions to be faulty. First, there is no indication in the record that either Defendant was served with “a written notice that the default or default judgment has been entered.” Second, Plaintiff has not advanced any authority that the purported “notice of lien” received by Petrossian is akin to notice of entry of judgment. Thus, the Court finds the motion to be timely under Section 473.5.

Second, the Court finds that Defendants complied with the requirement to file with the motion a copy of their proposed answer. (See Motion, Exhibit 1.)

Third, Defendants contend they were never personally served with the summons and became aware of the litigation in January 2023 due to the pending sale of their residence. In support of the motion, Defendants advance their declarations in which they state:

· I first became aware of this lawsuit on January 19, 2023, when I hired counsel after discussing with him another case in which I am a named Defendant.

· In looking back, I do recall receiving a notice of a lien in the mail but did not comprehend its meaning in relation to me or my real property.

· I had wrongfully assumed at all times relevant herein, that Gor’s dog was his exclusive responsibility, and I would not in any way be held liable for him or his dog’s actions.

· I do not have any tenants and my son Gor Karapetian does not live with me and has not since 2019.

· As I understand it, the incident that is alleged inside the complaint did not occur on the real property that I own and I therefore would like to have my day in court and defend myself.

· In reviewing the complaint relating to the incident on Honolulu Avenue I was also not made aware of any incident that occurred on the date alleged in the complaint.

· My name is Ara KARAPETIAN and I have resided in the Country of Armenia since 2004.

· I also allowed for Narine Petrossian to be power of attorney for me and manage my financial affairs.

· I have had little to no contact with my son Gor since residing in Armenia and my only communication is minimal during the year.

· I also was never personally served or mailed or emailed anything regarding this lawsuit.

· I first learned of it after Narine Petrossian hired an attorney for us to review another case. [1]

· I also do not own the dog in question in this lawsuit and I would like the opportunity to defend myself in this matter.

(Declaration of Ara Karapetian, ¶¶ 2-9.) In addition, Defendants proffer the Declaration of Gor Karapetian who declares:

· As background, I am the son of Narine Petrossian erroneously sued as Narine Karapetian.

According to Petrossian, she did not learn of the subject litigation until January 2023, and she was not personally served with papers concerning the litigation. Moreover, Petrossian states that she was not aware of the underlying incident which did not occur on her property. As for Karapetian, he has lived outside of the United States in Armenia since 2004 and first learned of the litigation after Counsel for Defendant was retained in another action. Karapetian also claims that he was not personally served, mailed or emailed with “anything” concerning the litigation. In addition, Petrossian attests that Gor Karapetian has not resided with her since 2019.

In opposition Plaintiff contends that Defendants had actual notice of the litigation precluding relief under Section 473.5. In particular, Plaintiff points to Petrossian receiving a “notice of lien” on a date which is undetermined. Plaintiff argues that the “notice of lien” “would be the County Recorder sending a copy of the Abstract, which describes the entry of judgment. This would have occurred on or around April 6, 2022, more than 9 months before the filing of this Motion.” (See Opposition, p. 6.) Further, Plaintiff shifts the burden onto Gor Karapetian and suggests that he was required to forward or transmit whatever papers he received in relation to the litigation. Plaintiff also intimates that Gor Karapetian may have concealed the litigation from his parents but then failed to admit to the concealment in his declaration. In short, Plaintiff asserts that Defendants, especially Petrossian, knew about the litigation but simply ignored it. Notwithstanding, the Court does not find the Declaration of Petrossian and Karapetian to lack the necessary veracity for the Court to reasonably rely upon them, and as such, the Court finds Plaintiff’s contentions to be speculative at best regarding whether Defendants had actual notice of the litigation.

Plaintiff also argues that Defendants’ lack of actual notice in time to defend the action was caused by either their avoidance of service or inexcusable neglect. Plaintiff refers to five failed attempts to serve Petrossian, but Plaintiff fails to provide any support for this contention. Nevertheless, the Court does not find this assertion to be material because, according to Plaintiff, the summons was eventually served on both Defendants via substitute service, resulting in the entries of default and the default judgment. Plaintiff also refers to numerous documents that were mailed to Petrossian’s home but faults Petrossian for not itemizing what she may or may not have received in the mail since the inception of this action in January 2020.

In considering Plaintiff’s arguments, the Court does not find them to be persuasive when measured against Defendants’ declarations which the Court readily acknowledges are “very slight evidence.” But the “very slight evidence” is all that Defendants need to advance in support of the motion, and any doubt the Court may have about granting the relief sought is resolved in Defendants’ favor, especially when the effect of not granting the relief sought may result in the sale of Defendants’ residence. [2] In summary, the Court finds that Defendants have met their burden for relief under Section 473.5.

Therefore, the Court grants Defendants’ motion to set aside the entry of default and default judgment, and vacates the defaults entered January 21, 2021 and the default judgment entered on March 9, 2022, regarding Defendants only.

The Court further orders Defendants to file and serve their answer to the Complaint forthwith but not later than April 26, 2023, and the Court discharges the Order to Show Cause re For Sale of Dwelling as moot.

In addition, the Court sets a Trial Setting Conference on June 14, 2023 at 8:30 A.M in Department 32.

Defendants shall provide notice of the Court’s ruling and orders, and file a proof of service regarding the same.

[1] Counsel for Defendants states that his office was retained to represent Defendants on January 19, 2023. (See Declaration of Thomas D. Sands, ¶ 3.)

[2] Under Code of Civil Procedure section 415.20, “[i]f a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.” (Code Civ. Proc., § 415.20, subd. (b).) “In order to obtain in personam jurisdiction through any form of constructive service there must be strict compliance with the requisite statutory procedures. (Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1417, quoting Stamps v. Superior Court (1971) 14 Cal.App.3d 108, 110.) Here, the Court questions whether the substitute service of the summons on Defendants was proper in the first instance due to Gor Karapetian claiming that he does not reside with his parents and was a “visitor” to their home on the day the summons was apparently served. As such, it is uncertain that Gor Karapetian was a “competent member of the household.”

DEPARTMENT	32
HEARING DATE	April 12, 2023
CASE NUMBER	20STCV35034
MOTION	Motion to Set Aside Default and Default Judgment
MOVING PARTIES	Defendants Narine Petrossian and Ara Karapetian
OPPOSING PARTY	Plaintiff Joshua Messler