Judge Robert B. Broadbelt, Case Number: 23STCV16504, Date: 2024-07-19 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 23STCV16504, Date: 2024-07-19 Tentative Ruling

MOVING PARTIES: Defendants Maxie James (erroneously sued as Maxi Faith James) and Ellae Lisque, LLC

The court considered the moving, opposition, and reply papers filed in connection with this motion.

Defendants Maxie James (erroneously sued as Maxi Faith James) (“James”) and Ellae Lisque LLC (“Ellae Lisque”) (collectively, “Defendants”) move the court for an order vacating (1) the entry of default against James, entered on October 20, 2023, (2) the entry of default against Ellae Lisque, entered on March 25, 2024, and (3) the default judgment entered by the court in favor of plaintiff Tpine Leasing Capital, L.P. (“Plaintiff”) and against Defendants in the amount of $59,596.06 on April 22, 2024.

“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).) A motion to set aside a default or default judgment under section 473.5 must be accompanied by (1) “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[,]” and (2) a copy of the answer, motion, or other pleading proposed to be filed in the action. (Code Civ. Proc., § 473.5, subd. (b).) “‘[W]ith respect to setting aside a default judgment, it is the policy of the law to favor, whenever possible, a hearing on the merits . . . .’” (Luxury Asset Lending, LLC v. Philadelphia Television Network, Inc. (2020) 56 Cal.App.5th 894, 907.)

The court finds that Defendants have met their burden to show that the court should set aside their defaults and the resulting default judgment entered in favor of Plaintiff and against Defendants. (Code Civ. Proc., § 473.5, subd. (a).)

First, the court finds that Defendants filed this motion within the time required by section 473.5 because (1) the court entered default judgment on April 22, 2024, and (2) Defendants filed this motion on June 12, 2024, i.e., within two years after entry of that default judgment. (Code Civ. Proc., § 473.5, subd. (a).)

Second, the court finds that Defendants have complied with the requirement to file a copy of the pleading proposed to be filed in the action by submitting a copy of their proposed answer. (Code Civ. Proc., § 473.5, subd. (b); Kirschner Decl., Ex. D [Def. Proposed Answer].)

Third, the court finds that Defendants have shown that (1) they did not receive actual notice of this lawsuit in time to defend themselves in this action and (2) their lack of actual notice was not caused by their avoidance of service or inexcusable neglect. (Code Civ. Proc., § 473.5, subds. (a), (b).)

Plaintiff filed two proofs of service as to Defendants. As to James, on October 5, 2023, Plaintiff filed a proof of service, signed by a registered process server, stating that James was personally served with the summons, complaint, and other case management documents on August 29, 2023, at 810 Edgewood Street, 102, Inglewood, California. As to Ellae Lisque, on February 16, 2024, Plaintiff filed a proof of service, signed by a registered process server, stating that Ellae Lisque was personally served by service on the office of the Secretary of State on February 6, 2024, pursuant to the court’s order granting Plaintiff’s application for order permitting service of process on Secretary of State. (Oct. 5, 2023 Proof of Service, ¶¶ 2-5, 7, subd. (e); Feb. 16, 2024 Proof of Service, ¶¶ 2-5, 7; Jan. 31, 2024 Order, p. 2:1-20.) Because the proofs of service were completed and signed by a registered process server, there is a rebuttable presumption of the facts stated therein. (Evid. Code, § 647 [“The return of a [registered] process server . . . upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return”].) The court finds that Defendants have met their burden to rebut the facts stated in the proofs of service. (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390 [because of the statutory presumption, a defendant must “produce evidence that he was not served”].)

James has stated, in her declaration, that (1) she was not personally served on August 29, 2023 at 810 Edgewood St., 102, Inglewood, California; (2) she does not live at that address and was not present at that address on the date of service, i.e., August 29, 2023; (3) neither James nor Ellae Lisque received notice of this action from the Secretary of State, from Ellae Lisque’s agent of service, or from any other person or in any other manner; and (4) James learned of this action on or about March 29, 2024, when she received mail solicitation from a law firm regarding this matter and inquiring whether she needed legal representation. (James Decl., ¶¶ 2-4.) James has further stated that neither she nor Ellae Lisque avoided service. (James Decl., ¶ 4.) The court finds that this is sufficient to rebut the presumption of the facts stated in the proofs of service. (Evid. Code, § 647; American Express Centurion Bank, supra, 199 Cal.App.4th at p. 390.)

The court acknowledges that, in support of its opposition, Plaintiff has submitted documents that defendant James provided to it when seeking approval of the subject lease,[1] including a copy of James’s driver license stating her address to be 810 Edgewood Street, Apartment 102, Inglewood, California (i.e., the address of service). (Randhawa Decl., Ex. 4, PDF p. 44.) However, this evidence does not establish that, on the date of service, James (1) still lived at that address, or (2) was present at that address and therefore able to accept service of the summons and complaint. Moreover, James’s supplemental declaration, filed in reply, states that, on the date of service, her residence was 1000 W. 8th Street, Apartment 2305, Los Angeles, California. (Supp. James Decl., ¶ 2.)

Thus, for the reasons set forth above, the court finds that Defendants have shown that service did not result in actual notice to Defendants in time to defend this action and therefore grants Defendants’ motion. (Code Civ. Proc., § 473.5, subd. (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”].)

The court grants defendants Maxie James and Ellae Lisque LLC’s motion to set aside default.

The court orders that the entry of default against defendant Maxie James, entered on October 20, 2023, is set aside.

The court orders that the entry of default against defendant Ellae Lisque, LLC, entered on March 25, 2024, is set aside.

The court orders that the default judgment entered by the court in favor of plaintiff Tpine Leasing Capital, L.P. and against defendants Maxie James and Ellae Lisque LLC on April 22, 2024, is set aside.

The court orders defendants Maxie James and Ellae Lisque LLC to file and serve the answer to plaintiff Tpine Leasing Capital, L.P.’s Complaint, in the form attached as Exhibit D to the “Declaration of Ethan D. Kirschner in Support of Defendants’ Motion to Set Aside Defaults and Default Judgment,” within five days of the date of this order.

The court sets a Case Management Conference on August 19, 2024, at 8:30 a.m., in Department 53.

The court orders defendants Maxie James and Ellae Lisque LLC to give notice of this ruling.

[1] The declaration does not appear to state the date on which James provided those documents to Plaintiff. However, because the subject lease was executed in or around April 2022, the court presumes that she provided those documents around that time. (Randhawa Decl., Ex. 4; Compl., ¶ 11.)

tpine leasing capital, l.p. ; Plaintiff, vs. maxi faith james , et al.; Defendants.	Case No.:	23STCV16504

	Hearing Date:	July 19, 2024

	Time:	10:00 a.m.

	[tentative] Order RE: defendants’ motion to set aside defaults and default judgment