Judge Ronald F. Frank, Case Number: 23TRCV91701, Date: 2024-02-16 Tentative Ruling

Judge: Ronald F. Frank, Case: 23TRCV91701, Date: 2024-02-16 Tentative Ruling

Case Number: 23TRCV91701 Hearing Date: February 16, 2024 Dept: 8

Tentative Ruling¿

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HEARING DATE: February 16, 2024¿¿

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CASE NUMBER: 23TRCV91701

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CASE NAME: Commercial Scafforlding of Ca Inc. v. Ismael Rivera, et al.

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MOVING PARTY: Defendant Reyes Ipinaardon

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RESPONDING PARTY: Plaintiff, Commercial Scaffolding of California, Inc. (no opposition)

TRIAL DATE: Not Set.

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MOTION:¿ (1) Motion to Set Aside Default

Tentative Rulings: (1) GRANTED.

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I. BACKGROUND¿¿

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A. Factual¿¿

On May 30, 2023, Plaintiff, Commercial Scaffolding of California, Inc. (“Plaintiff”) filed a Complaint against Defendant, Ismael Rivera and DOES 1 through 100. The Complaint alleges causes of action for: (1) Conversion; and (2) Unfair Competition – Business & Professions Code § 17200, et seq..

On October 13, 2023, Plaintiff filed Requests for Entry of Default as against a number of defendants, and on October 9, 2023 Plaintiff filed a default rest as to another defendant, Reyes Ipinaardon. However, Defendant’s moving papers assert that Mr. Ipinaardon never received any of the documents that were served or mailed to the address that the summons and complaint were sent. On November 15, 2023, entry of default/judgment was entered. Accordingly, Defendant argues that he did not receive actual notice of the pendency of this action by the purported service or mailing of the documents to his address on file: 1767 Westmoreland Blvd, Los Angeles CA 90006. As such, Defendant Ipinaardon now moves in pro per to set aside the entry of default judgment.

B. Procedural

On November 28, 2023, Defendant, Reyes Ipinaardon filed this Motion to Set Aside Default Judgment. On January 23, 2024, Plaintiff filed a non-opposition.

II. ANALYSIS¿

A. Legal Standard

Code of Civil Procedure section 473.5 states: “(a) 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.

(b) 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.

(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.”

B. Discussion

Here, Plaintiff filed a non-opposition, noting that it did not oppose the request by Defendant to appear in the matter and defend against the claim.

Defendant Ipinaardon argues that this Court should set aside the default and default judgment and allow him the opportunity to defend himself. Defendant argues that he did not receive actual notice of the entry of default because he was not served at the listed address where the summons and complaint were served. The Court observes that the proof of service notes that Defendant Ipinaardon was served at a business address: 82 S Baltic Place, Suite 103, Meridian, Idaho, 83642. The September 20, 2023 proof of service as to the summons and complaint does verify his address of 1767 Westmoreland Blvd., Los Angeles, CA 90006. As such, there appears to be corroboration for Defendant Ipinaardon’s assertion that he may not have received actual notice.

Thus, the Court GRANTS Defendant Ipinaardon’s Motion to Set Aside Default and Default Judgment. His November 28, 2023 Answer is deemed filed and served as of the date of this hearing. The Court will give notice of its ruling.¿