Judge Salvatore Sirna, Case 22PSCV00707 2023-02-15 Tentative Ruling

Judge: Salvatore Sirna, Case: 22PSCV00707, Date: 2023-02-15 Tentative Ruling

Case Number: 22PSCV00707 Hearing Date: February 15, 2023 Dept: G

Defendant Zifa Lin’s Motion to Set Aside the Default Judgment and To Stay the Execution of Default Judgment

Respondent: NO OPPOSITION

TENTATIVE RULING

Defendant Zifa Lin’s Motion to Set Aside the Default Judgment is GRANTED and Defendant’s Request to Stay the Execution of Default Judgment is DENIED AS MOOT.

Defendant to file a responsive pleading to Plaintiff’s Complaint in ten (10) days.

BACKGROUND

This is a breach of lease agreement action. On August 7, 2020, Zifa Lin (Defendant) and Phoe Tech Group, Inc. (collectively, Defendants) entered into a 3-year lease agreement with Plaintiff Puente Hills Business Center II, L.P. in which Defendants agreed to rent a property in the City of Industry from Plaintiff. On June 2, 2022, Defendants were evicted from the property pursuant to a judgment entered in an unlawful detainer action brought by Plaintiff. Since the filling of the present action, Plaintiff has been unable to lease property to a new tenant.

On July 12, 2022, Plaintiff filed a complaint against Defendants and Does 1-10, alleging the following causes of action: (1) breach of written lease, (2) breach of written guaranty, and (3) common counts. Default was entered against Defendants on September 1.

On September 21, 2022, Plaintiff applied for a default judgment against Defendants and the court granted Plaintiff’s application on December 5.

On January 24, 2023, Defendant filed the present motion. A hearing on the motion is set for February 15.

ANALYSIS

Defendant seeks to set aside default judgment on the grounds that Defendant was not adequately served and thus lacked actual notice. For the following reasons, the court GRANTS Defendant’s motion.

Legal Standard

Whenever an application for relief from default judgment is made no more than six months after entry of judgment, is in proper form, and is accompanied by the moving party’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or excusable neglect, the court may vacate any (1) resulting default entered by the clerk against the moving party or (2) resulting default judgment or dismissal entered against the moving party, unless the court finds that the default or dismissal was not in fact caused by the moving party’s mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., §473, subd. (b).) “The six-month time limit for granting statutory relief is jurisdictional and the court may not consider a motion for relief made after that period has elapsed.” (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.) That “six-month period runs from entry of default, not entry of judgment.” (Id.)

Courts liberally grant motions to vacate default judgments when relief is promptly sought and the opposing party is not prejudiced as the law strongly favors resolution on the merits. (Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13, 28.) Courts only require “slight evidence” to support vacating a default and resolve all doubts in favor of the party seeking relief. (Ibid.) However, “[t]he only occasion for the application of section 473 is where a party is unexpectedly placed in a situation to his injury without fault or negligence of his own and against which ordinary prudence could not have guarded.” (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206, quoting Elms v. Elms (1946) 72 Cal.App.2d 508, 513.)

Discussion

In this case, Defendant denies being served and claims the address at which Plaintiff effected substitute service is not Defendant’s residence.

The proof of service signed by a registered process server creates a rebuttable presumption that service was valid, and defendant must produce evidence that he was not properly served. (Evid. Code, § 647; American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390.)¿Here, Plaintiff provided a proof of substitute service signed by a registered process server who claimed to serve an unnamed individual at a residence in Chino Hills on July 22, 2022. Prior to the substitute service, Plaintiff’s registered process server visited the residence on three different days but was unable to get an answer. Plaintiff also mailed a copy of the request for entry of default to the same Chino Hills address.

In response, Defendant states (1) Defendant never received service in this action (Lin Decl., ¶ 4), (2) Defendant does not own the property at the Chino Hills address (Lin Decl., ¶ 5), (3) Defendant never listed the Chino Hills address as a mailing address (Lin Decl., ¶ 7), and (4) Defendant has lived in Chino since February 2018. (Lin Decl., ¶ 8) In support of Defendant’s testimony, Defendant provided copies of Defendant’s utility bills from November 25, 2022 to April 27, 2018 with the Chino address listed. (Motion, Ex. C.) Because the court finds this evidence sufficient to rebut the presumption of proper service, the resulting entry of default and default judgment are void. (Kremerman v. White (2021) 71 Cal.App.5th 358, 374 [abuse of discretion for trial court to deny motion to vacate default when service is in improper].)

Accordingly, Defendant’s motion is GRANTED.

CONCLUSION

Based on the foregoing, the court GRANTS Defendant’s motion to set aside default judgment and DENIES Defendant’s request to stay execution of the default judgment as MOOT.

Defendant to file a responsive pleading to Plaintiff’s Complaint in ten (10) days.