Judge: Robert B. Broadbelt, Case: 23STCV25968, Date: 2024-01-31 Tentative Ruling

Case Number: 23STCV25968    Hearing Date: January 31, 2024    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                 Defendant Andrew Troyan    

RESPONDING PARTY:       Plaintiff Santee Collection LLC

Motion to Vacate Default Judgment

The court considered the moving and opposition papers filed in connection with this motion.  No reply papers were filed.

DISCUSSION

Defendant Andrew Troyan (“Defendant”) moves the court for an order vacating the judgment for unlawful detainer by default entered in favor of plaintiff Santee Collection LLC (“Plaintiff”) and against Defendant on December 20, 2023, pursuant to Code of Civil Procedure section 473.[1]  Defendant contends that this relief is warranted because he was not served with the summons and complaint.  (Troyan Decl., ¶ 3.)

“The 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.  Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”  (Code Civ. Proc., § 473, subd. (b).)

The Proof of Service of Summons filed by Plaintiff on December 13, 2023 states that the summons, complaint, and other case management documents were served on Defendant on November 17, 2023 by posting and mailing copies thereof pursuant to Code of Civil Procedure section 415.45.  (POS-010 filed Dec. 13, 2023, ¶¶ 3, 5; Nov. 15, 2023 Application and Order to Serve Summons by Posting for Unlawful Detainer, p. 2 [ordering that Defendant may be served by posting a copy of the summons and complaint on the premises in a manner most likely to give actual notice to defendant, and by immediately mailing, by certified mail, a copy of the summons and complaint to defendant at his last known address].)  The Proof of Service is signed by a registered process server, and therefore “‘establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.’”  (Fernandes v. Singh (2017) 16 Cal.App.5th 932, 940 [emphasis in original]; Evid. Code, § 647].) 

The court finds that Defendant has not met his burden to produce evidence showing that service of the summons and complaint was not effected on him in order to rebut the presumption of the facts stated in the Proof of Service and therefore has not shown that the court should vacate the default judgment on the ground of mistake, inadvertence, surprise, or excusable neglect.  (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390 [“Because of the statutory presumption, defendant was thus required to produce evidence that he was not served”]; Code Civ. Proc., § 473, subd. (b).)

Defendant has submitted only his declaration, in which he states that he “was not able to file an answer to the complaint [for] unlawful detainer because [he] was not served . . . .”  (Troyan Decl., ¶ 3.)  However, Plaintiff was not required to personally serve the summons and complaint on Defendant.  On November 15, 2023, the court ordered that Plaintiff was permitted to serve Defendant by posting a copy of the summons and complaint on the premises in a manner most likely to give actual notice to Defendant, and by immediately mailing, by certified mail, a copy of the summons and complaint to Defendant at his last known address.  (Nov. 15, 2023 Application and Order to Serve Summons by Posting for Unlawful Detainer, p. 2.)  Thus, Plaintiff was required only (1) to post the summons and complaint on the premises in a manner most likely to give actual notice to Defendant, and (2) to have a copy of the summons and complaint be forthwith mailed, by certified mail, to Defendant at his last known address.  (Ibid.; Code Civ. Proc., § 415.45, subd. (b).)  Service of the summons in the manner set forth by section 415.45 is deemed complete on the 10th day after posting and mailing.  (Code Civ. Proc., § 415.45, subd. (c).)  

Here, Defendant’s declaration does not rebut the facts stated in the Proof of Service.  Specifically, Defendant does not present evidence disputing that, on November 17, 2023, (1) the summons and complaint were posted on the premises in a manner most likely to give him actual notice, or (2) the summons and complaint were mailed, by certified mail, to his last known address.  (POS-010 filed Dec. 13, 2023, ¶ 5.)  Defendant therefore has not presented evidence showing that service was not effected and deemed complete as of 10 days after the posting and mailing of the summons and complaint in the manner set forth by section 415.45.  (Code Civ. Proc., § 415.45, subds. (b), (c).)

Thus, the court finds that Defendant did not meet his burden to show that Plaintiff did not properly serve the summons and complaint on Defendant, and therefore has not met his burden to show that he is entitled to relief pursuant to Code of Civil Procedure section 473, subdivision (b).  (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1205 [“A party seeking relief under section 473 bears the burden of proof”].) 

The court therefore denies Defendant’s motion.  (Code Civ. Proc., § 473, subd. (b).)

ORDER

            The court denies defendant Andrew Troyan’s motion to vacate default judgment.

            The court orders that (1) the stay of the execution of the judgment of possession and writ of possession issued by the court in its January 16, 2024 order is lifted, and (2) the judgment of possession and writ of possession may be executed by the Los Angeles County Sheriff’s Office.

            The court directs the clerk to deliver a copy of this order to the Los Angeles County Sheriff’s Office.

The court orders plaintiff Santee Collection LLC to give notice of this ruling.

IT IS SO ORDERED.

DATED:  January 31, 2024

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court