Judge: Michael E. Whitaker, Case: 22STCV25044, Date: 2023-01-26 Tentative Ruling

Case Number: 22STCV25044    Hearing Date: January 26, 2023    Dept: 32

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. 

TENTATIVE RULING

MOTION

              Defendant Jeremy Ellis (Defendant) move to set aside the Clerk of the Court’s October 10, 2022, entry of default.  Plaintiff Ciara M. (Plaintiff) has filed a notice of non-opposition.

ANALYSIS

Per Code of Civil Procedure section 473, subdivision (b), a court may “upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. 

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).) 

Under Code of Civil Procedure section 415.10 et seq., a defendant may be served either (1) by personal delivery to the defendant (Code Civ. Proc., § 415.10); (2) by substitute service (Code Civ. Proc., § 415.20); (3) by mail coupled with acknowledgement of receipt (Code Civ. Proc., § 415.30); or (4) by publication (Code Civ. Proc., § 415.50).  Code of Civil Procedure section 415.10 provides: “A summons may be served by personal delivery of a copy of the summons and complaint to the person to be served.  Service of a summons in this manner is deemed complete at the time of such delivery.”  A declaration of service by a registered process server establishes a presumption that the facts stated in the declaration are true. (Evid. Code, § 647; Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750; see also Floveyor International, Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795 [filing a proof of service that complies with statutory standards creates a rebuttable presumption that service was proper].).)

            Here, on August 19, 2022, Plaintiff filed a proof of service of the summons and complaint on Defendant via personal service.  The proof of service states the process server served Jeremy Ellis at 20234 Jubilee Way, Porter Ranch, CA 91326 on August 16, 2022.  (See August 19, 2022 Proof of Service.)  However, Plaintiff asserts the August 19, 2022 Proof of Service is untrue because Defendant did not reside at the real property located at 20234 W. Jubilee Way, Porter Ranch, CA 91326 at the time of service, but rather was renting the property to tenants.  (Declaration of Jeremy Ellis, ¶ 10, Exhibit C.)  Defendant’s residence on August 16, 2022, was at 2900 NE 7 Ave, Florida.  (Declaration of Jeremy Ellis, ¶ 11.)  Defendant concludes that personal service was not possible because he is and was a resident of Miami, Florida on August 16, 2022.  (Declaration of Jeremy Ellis, ¶¶ 12-13.)

Foremost, the Court calls into question part of Defendant’s assertion that he was not present at the Jubilee Way property because that property was leased to third parties.  The lease indicates that the term began on August 20, 2022.  Thus, it is plausible that Defendant was at the Jubilee Way property to receive the summons and complaint as reflected on the proof of service .  Notwithstanding this discrepancy, and because Plaintiff is not opposed to the motion, the Court finds that Defendant has rebutted the presumption that service of the summons and complaint was proper. 

CONCLUSION AND ORDER

            Therefore, the Court grants Defendant’ motion to set aside the Clerk of the Court’s October 10, 2022 entry of default, and orders the default vacated. 

            The Clerk of the Court shall provide notice of the Court’s ruling.