Judge: Shirley K. Watkins, Case: LC075554, Date: 2022-10-19 Tentative Ruling

Case Number: LC075554    Hearing Date: October 19, 2022    Dept: T

            [TENTATIVE] ORDER:  Defendant Barkev Balekian’s Motion to Set Aside the Default and Default Judgment is DENIED.

Introduction

Defendant Barkev Balekian (Defendant) moves to set aside the default and default judgment.  Plaintiff Target National Bank (Plaintiff) has not filed an opposition but made an appearance on the motion on September 14, 2022.

Procedure

This matter was originally set to be heard on May 27, 2022, but continued several times due to Defendant’s failure to attach or file a proof of service showing service upon Plaintiff.  Despite Defendant’s failure to submit a proof of service, Plaintiff appeared at the September 14, 2022, hearing without objecting to service.  Because Plaintiff appeared on the motion without objecting to service, Defendant’s failure to submit a proof of service is waived.  The matter can proceed on the merits.  However, at the September 14, 2022, hearing, Plaintiff requested a continuance to investigate Defendant’s claim of identity theft.  The parties have not submitted any additional briefs since the September 14, 2022, hearing.

            Discussion 

             The Complaint was filed August 21, 2006, and the proof of service filed on September 15, 2006, shows personal service upon Defendant on September 10, 2006.  Default was entered on October 31, 2006, and default judgment was entered on November 14, 2006.  The judgment was renewed on September 2, 2016, in the amount of $50,521.90.  Defendant filed the instant motion on March 29, 2022.

            Defendant asserts a lack of actual notice of the Summons and Complaint.  Defendant asserts that the account at issue was created by identity theft and the address used by Plaintiff for service on the Summons and Complaint was a fraudulent address created by the thief.  However, at issue is whether the address for service was incorrect back on September 10, 2006, since personal service is presumed established.  Other than Defendant’s conclusory declaration asserting otherwise, there is no evidence to validate Defendant’s claim that the address used for service was fraudulent.  The police report does not present any information as to Defendant’s address back in 2006.  Without corroborating evidence supporting Defendant’s contention, the motion is unpersuasive. 

            The Motion to Set Aside is DENIED.

            IT IS SO ORDERED, ____________________ TO GIVE NOTICE.