Judge: Michael P. Linfield, Case: 23STCV01856, Date: 2023-10-12 Tentative Ruling

Case Number: 23STCV01856    Hearing Date: October 12, 2023    Dept: 34

SUBJECT:        Motion to Set Aside Defendants’ Defaults and Vacate Default Judgment

Moving Party: Defendants Ori Globus and Roy Lev

Resp. Party:    None

        The Motion is GRANTED. The Default Judgment is VACATED, the defaults entered against Defendants are SET ASIDE, and the Complaint is DISMISSED.

BACKGROUND:

On January 27, 2023, Plaintiff LA Park La Brea B, LLC filed its Complaint against Defendants Ori Globus and Roy Lev (erroneously sued as Roy Levi) on a cause of action for unlawful detainer.

On March 6, 2023, by request of Plaintiff, the Clerk’s Office entered default on Defendants.

On March 8, 2023, by request of Plaintiff, the Clerk’s Office entered default judgment against Defendants and issued a Writ of Possession of Real Property.

On July 28, 2023, the Court granted Defendant Globus’s Ex Parte Application for Order Staying Execution of the Judgment and Granting Additional Time to Relocate (filed on July 25, 2023). The Court stayed the Default Judgment up to and including August 31, 2023.

On August 25, 2023, the Court denied Defendants’ Ex Parte Application for an Order Further Staying Enforcement of Judgment to Permit Defendants to Litigate a Motion to Set Aside Defaults and Vacate Default Judgment (filed on August 24, 2023).

On September 7, 2023, Defendants filed their Motion to Set Aside Defendants’ Defaults and Vacate Default Judgment (“Motion”). In support of their Motion, Defendants concurrently filed: (1) Declaration of Ori Globus; (2) Declaration of Roy Lev; (3) Declaration of Shanen Prout; and (4) Proposed Order.

On October 5, 2023, Defendants filed their Notice of No Opposition.

No opposition or other response has been filed to the Motion.

ANALYSIS:

I.          Legal Standard

“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.” (Code Civ. Proc., § 473.5, subd. (a).)

It has been long held that “the reference in Code of Civil Procedure section 473.5 to ‘actual notice’ means genuine knowledge of the party litigant and does not contemplate notice imputed to a principal from an attorney’s actual notice.” (Rosenthal v. Garner (1983) 142 Cal.App.3d 891, 895.)

“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.” (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).)

II.       Discussion

Defendants move the Court to set aside their defaults, vacate the default judgment, and dismiss this case with prejudice. (Motion, p. 10:16–18.)

Defendants argue: (1) that valid grounds exist for the Court to exercise its discretion to set aside the defaults and vacate judgment; (2) that Defendants exhibited excusable neglect and the default judgment is void due to defective service of process; (3) that Plaintiff failed to cause proper service of process; (4) that Code of Civil Procedure section 473.5 affords relief to Defendants; (5) that the Court should exercise its equitable powers to granted the requested relief; (6) that the Complaint fails to state a cause of action because Plaintiff lacked standing to sue; and (7) that there is no prejudice to Plaintiff if the Default Judgment is vacated. (Motion, pp. 3:6–7, 3:22–23, 4:20, 5:16, 6:22–23, 7:23–25, 9:27.)

Plaintiff did not oppose or otherwise respond to the Motion.

According to the declarations submitted, Defendant Globus was made aware of the case sometime between February 1 and 7, 2023, while Defendant Lev was made aware of the case sometime in the week before March 15. (Decl. Globus, ¶ 13; Decl. Lev, ¶ 4.) Neither was properly served in this matter. (Decl. Globus, ¶ 11; Decl. Lev, ¶ 4.) Both declare they were never made aware of the default or default judgment. (Decl. Globus, ¶¶ 16, 19; Decl. Lev, ¶ 5.) No evidence has been submitted that would contradict these declarations.

The Court finds that Defendant Globus received actual notice of the case sometime between February 1 and 7, 2023 and that Defendant Lev received actual notice of the case sometime in the week before March 15, 2023. It also appears that neither Defendant was properly served with the summons, the default, or the default judgment. Plaintiff’s failure to properly serve Defendants was not caused by any avoidance of service or inexcusable neglect by Defendants.

Default was entered on Defendants on March 6, 2023, and the Default Judgment was entered on March 8, 2023.

“Section 473.5 provides relief from default or default judgment to those defendants who, despite proper service, never received ‘actual notice’ of the lawsuit in time to defend against it.” (Luxury Asset Lending, LLC v. Philadelphia Television Network, Inc. (2020) 56 Cal.App.5th 894, 908.)

“No reported decision has considered whether the limitation period contained in section 473.5 governs by analogy a motion for relief from a default judgment valid on its face but otherwise void because of improper service. . . . There is no valid reason to conclude that the Legislature intended to treat those defendants properly served more favorably than those not served at all.” (Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1123–1124.)

Here, Defendants were not properly served. They properly filed this Motion within two years of the entry of default and default judgment against them. The 180-day period does not apply here because they were not served with written notice of the entry of default or default judgment.

The sole cause of action in this matter is for unlawful detainer. Defendants owed Plaintiff $203,625 in rent.  On March 16, 2023, they signed a stipulation for judgement; at that time, they had paid $143,841 of the back-rent owed.

Defendant Globus personally appeared two times in this Court.  The Court did not find Mr. Globus to be particularly truthful or honest.  However, it appears based on the declarations that the real property at issue has been vacated since August 2023. (Decl. Globus, ¶ 3.) Thus, there is no longer a basis for this action.

        The Court GRANTS the Motion. The Court VACATES the Default Judgment, SETS ASIDE the defaults entered against Defendants, and DISMISSES with prejudice the Complaint.

III.     Conclusion

        The Motion is GRANTED. The Default Judgment is VACATED, the defaults entered against Defendants are SET ASIDE, and the Complaint is DISMISSED.