Judge: Salvatore Sirna, Case: 24PSCV03117, Date: 2025-03-20 Tentative Ruling

Case Number: 24PSCV03117    Hearing Date: March 20, 2025    Dept: G

Defendants Peng Zhang and Xiang Zhang’s Motion to Set Aside Default Pursuant to C.C.P. §§ 473(b) and 473.5

Respondent: Plaintiff Jun Liu

TENTATIVE RULING

Defendants Peng Zhang and Xiang Zhang’s Motion to Set Aside Default Pursuant to C.C.P. §§ 473(b) and 473.5 is GRANTED.

BACKGROUND

This is an action involving a breach of contract. Plaintiff Jun Liu (Plaintiff) alleges the following. On August 28, 2019, Plaintiff and defendants Peng Zhang and Xiang Zhang (collectively, Defendants) signed a five-year lease for the subject property located at 1640 Halliburton Rd., Hacienda Heights, CA 91745 (Subject Property). On December 25, 2019, government employees posed an “illegal construction” notice on the Subject Property’s main gate and requested entrance into the Subject Property for inspection. On January 16, 2020, government employees issued a “Notice of Illegal Construction.”

Plaintiff continues to allege the following. Since January 2020, Plaintiff asked Defendants to act in accordance with the government’s requests and for a refund and termination of the lease, but Defendants have not been responsive. On March 11, 2020, Plaintiff mailed Defendants a letter to request that Defendants solve all housing issues, including blocked sewer pipes. On March 30, 2020, Defendants replied via writing that they would solve the issues. These house issues have not been resolved.

On September 20, 2024, Plaintiff filed a complaint against Defendants, alleging the following causes of action: (1) breach of contract and (2) “the rental house provided by the defendant is an illegal building.”

On September 24, 2024, Plaintiff claims to have served Defendants via substituted service. The unnamed registered California process server left the civil case cover sheet and complaint with William Chen, “an employee of the intermediary company handling the defendant’s affairs.”

On January 14, 2025, the court entered default against Defendants.

On February 20, 2025, Defendants filed this instant motion. A hearing on this motion and a case management conference are set for March 20, 2025.

ANALYSIS

Defendants move to set aside the default entered on January 14, 2025 under Code of Civil Procedure sections 473, subdivision (b) and 473.5. For the following reasons, the court GRANTS Defendants’ motion.

Legal Standard

Code of Civil Procedure § 473, subd. (b)

Whenever an application for relief from default is made no more than six months after the entry of default, 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 entry of default entered against the moving party unless the court finds that the dismissal was not in fact caused by the moving party’s mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., §473, subd. (b).) The court shall grant relief if the moving party’s counsel provides a “sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc., § 473, subd. (b).) “The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” (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.)

Code of Civil Procedure § 473.5

Code of Civil Procedure section 473.5, subdivision (a) provides: “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 party must also provide a copy of the answer, motion, or other pleading and establish that the lack of actual notice was “not caused by his or her avoidance of service or inexcusable neglect.” (Code Civ. Proc., § 473.5, subds. (b)-(c).)

“[I]t is the policy of the law to bring about a trial on the merits whenever possible, so that any doubts which may exist should be resolved in favor of the application, to the end of securing to a litigant his day in court and a trial upon the merits.”¿(Frank E. Beckett Co. v. Bobbitt (1960) 180 Cal.App.2d Supp. 921, 928.) “Even in a case where the showing under section 473 is not strong, or where there is any doubt as to setting aside of a default, such doubt should be resolved in favor of the application.”¿ (Ibid., quoting Van Dyke v. MacMillan (1958) 162 Cal.App.2d 594, 598, italics in Bobbitt.)

Code of Civil Procedure § 415.20, subd. (b)

“If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.” (Code Civ. Proc., § 415.20, subd. (b).)

Discussion

Code of Civil Procedure § 473, subd. (b)

Here, Defendants’ counsel fails to provide a sworn affidavit attesting to their mistake, inadvertence, surprise, or neglect. (See Chen Decl.) As such, the court cannot grant the motion to set aside default under Code of Civil Procedure section 473, subdivision (b).

Code of Civil Procedure § 473.5

As an initial matter, Defendants fail to clarify when they first learned of the default. Nevertheless, Defendants filed this instant motion thirty-seven (37) days after default was entered. Thus, the court finds the motion is timely filed pursuant to Code of Civil Procedure section 473.5, subdivision (a).

Here, Plaintiff filed a proof of service on December 27, 2024, that stated Defendants were served via substitute service on September 23, 2024. (Proof of Service of Summons (PoS), p. 1.)¿The proof of service states Plaintiff’s unnamed process server served Defendants via William Chen, “an employee of the intermediary company handling the defendant’s affairs.” (PoS, p. 1.)

Defendants argue they did not have actual notice of the default when the default was entered, because service of the complaint was improper and void. (Motion, p. 4:10-23.) In arguing service was improper and void, Defendants first assert Plaintiff’s process server never attempted to serve Defendants personally. (Motion, p. 5:11-13.) Defendants also claim William Chen is a real estate agent and William Chen’s business address has no connection to Defendants. (Motion, p. 5:24-27.) In support of these arguments, Defendants’ counsel provided a declaration in which the counsel repeats the claims above. (Chen Decl., ¶ 3.)

In opposition, Plaintiff argues his process server made multiple unsuccessful attempts to serve Defendants. (Opp., p. 2:7-9.) Plaintiff does not, however, offer an exhibit or declaration as support. Plaintiff asserts that William Chen is an agent authorized by Defendants to handle Defendants’ property-related matters and, in support, provide an Authorization of Agent to Act on Property Owner’s Behalf (Authorization). (Opp., p. 2:10-17.) Peng Zhang signed the Authorization, which explicitly authorizes Rita Chang “to apply for, sign, and file the documents necessary to obtain an Owner-Builder Permit for [a] project.” (Opp., Exh. 1.)

Regardless of whether Plaintiff’s unnamed process server attempted to serve Defendants personally, the process server did not serve a copy of the summons and complaint at the Defendants’ usual place of business or upon an authorized agent. The process server left the complaint at a business unrelated to Defendants and with a person who is not an authorized agent.

Thus, the court finds Defendants’ lack of actual notice was not caused by their avoidance of service or inexcusable neglect.

Defendants attach a copy of their proposed answer as Exhibit C to the motion.

Accordingly, the court GRANTS Defendants’ motion to set aside default.

CONCLUSION

For the foregoing reasons, Defendants’ motion to set aside default entered against Defendants is GRANTED.

The Answer attached as Exhibit C is to be file separately, forthwith.