Judge: Serena R. Murillo, Case: 21STCV33629, Date: 2023-03-21 Tentative Ruling
Case Number: 21STCV33629 Hearing Date: March 21, 2023 Dept: 29
TENTATIVE
Defendant Mina George Baskharon’s motion to
set aside default is GRANTED. Plaintiff’s request for sanctions is DENIED.
Legal Standard
CCP section
473(b) provides, in relevant part:
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(b).)
CCP § 473.5—Lack of Actual Notice
CCP § 473.5(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.” (CCP § 473.5(a).)
“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.” (CCP §
473.5(b).)
“‘[A]ctual notice’ in section 473.5 ‘means genuine
knowledge of the party litigant . . . .’ [Citations.] ‘[A]ctual
knowledge’ has been strictly construed, with the aim of implementing the policy
of liberally granting relief so that cases may be resolved on their
merits.’ [Citation.]” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 547.) “[A] party can
make a motion showing a lack of actual notice not caused by avoidance of service
or inexcusable neglect . . .” (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180.) “‘[I]t does not
require a showing that plaintiff did anything improper . . . . [T]he defaulting
defendant simply asserts that he or she did not have actual notice’.” (Id.)
“[I]f the court has acquired jurisdiction, i.e., summons
has been served, but service of summons has not resulted in actual notice to a
defendant, although the defendant has acquired actual knowledge of the action
from another source, this does not preclude a defendant from seeking relief
under section 473.5.” (Ellard, 94 Cal.App.4th at 548.)
CCP section 473(d)
CCP § 473(d)
provides that “[t]he court may, upon motion of the injured party, or its own
motion, correct clerical mistakes in its judgment or orders as entered, so as
to conform to the judgment or order directed, and may, on motion of either
party after notice to the other party, set aside any void judgment or
order.”
“Notice of the
litigation does not confer personal jurisdiction absent substantial compliance
with the statutory requirements for service of summons.” (MJS
Enterprises, Inc. v. Superior Court (1984) 153 Cal.App.3d 555, 557 (citing Ault
v. Dinner For Two, Inc. (1972) 27
Cal.App.3d 145, 148).) When the summons was not served in substantial
compliance with the statutory requirements, the court does not obtain personal
jurisdiction over the defendant. (See ibid.) A “default
judgment entered against a defendant who was not served with a summons in the
manner prescribed by statute is void. Under § 473(d), the court may set aside a
default judgment which is valid on its face, but void, as a matter of law, due
to improper service.” (Ellard v. Conway (2001) 94 Cal.App.4th 540,
544.) Where service is challenged, the burden is on the plaintiff to
prove the facts requisite to an effective service. (Lebel v. Mai
(2012) 210 Cal.App.4th 1154, 1160.) Statutes “governing substitute
service shall be ‘liberally construed to effectuate service and uphold
jurisdiction if actual notice has been received by the defendant.’” (Hearn
v. Howard (2009) 177 Cal.App.4th 1193, 1201.)
Evidentiary Objections
Plaintiff’s
Objections to Defendant’s Evidence:
· The
following objections are overruled: Baskharon Decl., ¶¶
6, 7; Monier Decl., ¶ 3; Yerzinkyan
Decl., ¶¶ 4, 5, 7.
· The
following objections are sustained: Baskharon Decl.,
¶ 3.
Plaintiff’s
Objections to Defendant’s Evidence in the Supplemental Brief:
·
The following objections are overruled:
Baskharon Decl., ¶¶ 2, 3, 4, and 5; Monier
Decl., ¶¶,
4,5, 7, 8,9, 10, 11, 12, 13, 14, and Exh. A.
· The
following objections are sustained: Guillen declaration in its entirety.
Discussion
Defendant first
argues the default should be set aside pursuant to CCP section 473.5, i.e.,
that the service of summons did not result in actual notice to Defendant in
time to defend. CCP section 473.5 provides that a defendant may obtain relief
from default and default judgment if the defendant seeks relief within two
years of the default judgment or 180 days after service of written notice that
the default or default judgment has been entered, whichever is earlier. (Code
Civ. Proc., § 473.5.) Here, default judgment was entered on July 5, 2022. (See
Motion, Ex. B.) The two-year deadline is July 5, 2024, and the 180-day deadline
is January 1, 2023. Defendant filed the instant motion on September 1, 2022. As such, the
motion is timely.
Defendant
contends that the Court should set aside the default against him because he was
not served with the Summons or Complaint. Plaintiff’s
proof of service indicates that on May 10, 2022, at 11:28 a.m., Defendant was
served with the complaint by substituted service made upon Defendant’s wife and
co-occupant, Dina Monier, at 9950 Juanita Street, Apt. 106, Cypress, California
90630. (Yerzinkyan Decl., Exh. A.) Monier declares under penalty of perjury
that contrary to the proof of service, she never received or was handed a copy
of the complaint and summons. (Monier Decl., ¶ 4.) She avers that on May 10, 2022, she was not home
from 10:00 a.m. to 4:00 p.m., but instead was at her husband’s convenient
store, located at 6636
Westminster Blvd., Westminster, California 92683, helping him with the business.
(Supplemental Brief, Monier Decl., ¶¶ 3, 5, & 9.) Defendant also avers that he did not have
actual notice of the lawsuit until default was entered against him. (Baskharon
Decl., ¶ 6.) Defendant avers
that he first received a copy of the complaint by mail on or about July 14,
2022. (Id., ¶ 5.)
Construing
“actual notice” strictly, with the aim of implementing the policy of liberally
granting relief so that cases may be resolved on their merits (Ellard v.
Conway, 94 Cal.App.4th at 547), the Court finds that Defendant has
demonstrated that he did not have actual notice of the complaint in time to
defend, and that he was not avoiding service. Defendant provides he did not
receive service of the summons and complaint. In such circumstances, fairness
requires the default be set aside. (See Olvera v. Olvera (1991) 232
Cal.App.3d 32, 40 (“[S]ection 473.5 reflects the understanding that if any form
of service of summons does not result in actual knowledge, fundamental fairness
may require that a subsequent default be set aside.”).)
Thus, Defendant’s
Motion to set aside the default against him under CCP section 473.5 is GRANTED.
Sanctions
Plaintiff
seeks sanctions under Code of Civil Procedure section 473(c)(1)(A), which
provides: “Whenever the court grants relief from a default, default judgment,
or dismissal based on any of the provisions of this section, the court
may do any of the following: (A) Impose a penalty of no greater than one
thousand dollars ($1,000) upon an offending attorney or party.”
However, Defendant
did not move under Code of Civil
Procedure section 473(b), and the Court is granting relief under section
473.5, not 473(b). Thus, the request for sanctions is denied.
Conclusion
Accordingly, Defendant’s motion to set aside
default under Code of Civil Procedure section 473.5 is GRANTED. Plaintiff’s request for sanctions
is DENIED.
Moving party is ordered to give notice.