Judge Stephen P. Pfahler, Case 22CHCV00034 2022-12-06 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 22CHCV00034, Date: 2022-12-06 Tentative Ruling

Case Number: 22CHCV00034 Hearing Date: December 6, 2022 Dept: F49

Dept. F-49

Calendar # 5

Date: 12-06-2022

Case # 22CHCV00034

Trial Date: None.

MOTION TO SET ASIDE AND VACATE DEFAULT AND DEFAULT JUDGMENT

MOVING PARTY: Defendant, Ingrid Anderson

RESPONDING PARTY: None.

RELIEF REQUESTED

SUMMARY OF ACTION

The present action is an unlawful detainer action. Ismael Jauregui (“Plaintiff”) is the owner of the real property located at approximately 27537 Eastbrook Avenue in Canyon Country, California (“Subject Premises”). On March 1, 2020, Plaintiff entered into a written lease agreement with Esteban Ernesto Echeverria, Ingrid Anderson, and Dylan Bauer (collectively, “Defendants”), agreeing to rent the Subject Premises to Defendants in exchange for Defendants’ payment of monthly rent equal to approximately $2,400.00. Plaintiff maintains Defendants breached the lease agreement by failing to pay rent from April 1, 2020 through November 1, 2021, leaving about $50,400.00 unpaid by way of rent. Despite having been served with a 3-Day Notice to Pay Rent or Quit, Defendants have failed to pay the outstanding amount in rent or vacate the Subject Premises. Plaintiff brings this action to recover possession of the Subject Premises and collect the rent which remains unpaid.

On January 13, 2022, Plaintiff, in propria persona, commenced this action by filing a Complaint—Unlawful Detainer against Defendants. Subsequently, on February 14, 2022, Plaintiff filed the operative First Amended Complaint—Unlawful Detainer against Defendants.

On March 9, 2022, Plaintiff filed three Proof of Service documents, detailing that on January 1, 2022, Defendants, each, were personally served at the Subject Premises with a copy of the Summons and Complaint—Unlawful Detainer.

Additionally, on March 9, 2022, Plaintiff filed three Proof of Service documents, detailing that on February 14, 2022, Defendants, each, were personally served at the Subject Premises with a copy of the Summons and First Amended Complaint—Unlawful Detainer.

On July 14, 2022, Plaintiff filed three Requests for Entry of Default and Clerk’s Judgment against each respective Defendant, requesting that this Court enter default as to each Defendant and enter judgment awarding possession of the Subject Premises to Plaintiff as well as issue a writ of execution on the judgment.

On July 14, 2022, this Court entered default as to each Defendant. Thereafter, on August 19, 2022, the Court Clerk entered judgment against each Defendant, awarding possession of the Subject Premises to Plaintiff.

On September 8, 2022, this Court issued a Writ of Possession of Real Property, which would be served upon Defendants at the Subject Premises and instruct Defendants to vacate the Subject Premises.

On October 28, 2022, Defendant Ingrid Anderson (“Defendant Anderson”), in propria persona, filed an Ex Parte Application for Order Staying Execution of the Judgment until a Hearing on Defendant’s Motion to Set Aside Judgment (Default and Writ, also, if any) and an Order Shortening Time for Hearing and Service of the Motion to Set Aside (hereinafter, “Ex Parte Application”).

On October 31, 2022, Defendant Anderson’s Ex Parte Application came before the Court for hearing. Defendant Anderson’s Ex Parte Application was granted, in part, for good cause shown, by staying the execution of the judgment as to Defendant Anderson until the hearing on Defendant Anderson’s Motion to Vacate and Set Aside Default Judgment. The Court specially set the hearing upon Defendant Anderson’s Motion to Vacate and Set Aside Default Judgment for December 6, 2022. Additionally, the Court informed Defendant Anderson that the Ex Parte Application cannot serve as the moving papers for the hearing date and, rather, Defendant Anderson must file and duly, properly, and legally serve her moving papers pursuant to Code of Civil Procedure section 1005, subdivision (b). The Court further informed Defendant Anderson that she is ordered to give notice of the Court’s ruling upon her Ex Parte Application no later than five calendar days from the date of the Ex Parte hearing and, subsequently, file a proof of service no later than ten calendar days from the date of the Ex Parte hearing date.

On November 8, 2022, Defendant Anderson filed the instant Motion to Set Aside and Vacate Default and Default Judgment.

On November 16, 2022, a Return on the Writ of Possession of Real Property was filed, which indicates that a Five-Day Notice to Vacate was levied on the Subject Premises on approximately October 24, 2022, and subsequently, on November 2, 2022, Plaintiff was provided with possession of the Subject Premises.

RULING: Defendant Ingrid Anderson’s Motion to Set Aside and Vacate Default and Default Judgment is DENIED, without prejudice.

Defendant Anderson moves for an Order setting aside and vacating the default and default judgment entered on July 14, 2022 and August 19, 2022, respectively, as well as an Order quashing the Writ of Possession of Real Property issued on September 8, 2022, pursuant to Code of Civil Procedure section 473.5. (Code Civ. Proc., § 473.5.) Defendant Anderson argues the relief requested is warranted as she was never provided with actual notice of this action. (Anderson Decl., ¶ 2a.) Defendant Anderson contends, she was “never personally served with the Summons and Complaint[,]” and “the only document [she has] . . . personally seen is the Sheriff’s Notice to Vacate, which indicated that I would be locked out on October 31, 2022.” (Ibid.) Defendant Anderson requests that this Court award the relief requested in order to allow Defendant Anderson to participate in, and defend, the instant action. (Mot., at p. 5:17-20.)

“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 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.” (Code Civ. Proc., § 473.5, subd. (b).)

“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.” (Code Civ. Proc., § 473.5, subd. (c).)

Following review of Defendant Anderson’s moving papers and corresponding evidence, the Court concludes the relief requested may not be awarded at this juncture.

First, the Court observes Defendant’s Anderson’s Motion is riddled with fatal procedural errors. Initially, the Court notes, while Defendant Anderson has included a Proof of Service in conjunction with her Motion, the Proof of Service shows that the incorrect address has been served with respect to Plaintiff, the adverse party. The Proof of Service indicates Defendant Anderson served the moving papers upon Plaintiff at “P.O. Box 274 Castaic, CA 91310”. (Mot., at p. 8 [Proof of Service].) However, Plaintiff’s address, as displayed within the Court’s record, is noted as “5651 Repetto Street Los Angeles, California 90022”. (See First Amended Compl., at p. 1 [Plaintiff indicates his address is “5651 Repetto Street Los Angeles, California 90022”].) Accordingly, the Court concludes Defendant Anderson has failed to provide proper notice to Plaintiff of the present Motion, in violation of Code of Civil Procedure section 473.5, subdivision (a). (Code Civ. Proc., § 473.5, subd. (a) [requiring a noticed motion to be served on adverse parties].) Further, the Court observes Defendant Anderson has failed to include with her Motion “a copy of the answer, motion, or other pleading proposed to be filed in the action[,]” as required by Code of Civil Procedure section 473.5, subdivision (b). (Id., § 473.5, subd. (b).) Lastly, the Court observes Defendant Anderson has failed to provide notice to Plaintiff of the Court’s ruling upon Defendant Anderson’s Ex Parte Application or file a proof of service evidencing such notice, as instructed by this Court on October 31, 2022. (See Minute Order Re: Hearing on Ex Parte Application for Order Staying the Execution of the Judgment until a Hearing on Defendant’s Motion to Set Aside Judgment, filed October 31, 2022, at p. 1 [“Defendant is ordered to give notice of this ruling no later than five calendar days from today’s date”].)

Secondly, even despite the procedural errors associated with Defendant Anderson’s Motion, the Court remains without the authority to award the relief requested. Code of Civil Procedure section 473.5, subdivision (c) plainly states that the Court may set aside the entry of default and default judgment only upon a finding that Defendant Anderson’s “lack of actual notice in time to defend the action was not caused by . . . her avoidance of service or inexcusable neglect . . . .” (Code Civ. Proc., § 473.5, subd. (c).) Here, neither Defendant Anderson’s Motion nor Defendant Anderson’s accompanying declaration provide any facts which would warrant the Court to make such a factual finding. (See generally Mot., Anderson Decl.) Indeed, Defendant Anderson’s Motion and accompanying are silent as to the topics of avoidance of service or inexcusable neglect. (Ibid.) Accordingly, the Court concludes Defendant Anderson has failed to provide this Court with sufficient facts for the purposes of making the finding required by Code of Civil Procedure section 473.5, subdivision (c). (Code Civ. Proc., § 473.5, subd. (c).)

Based on the foregoing, Defendant Anderson’s Motion to Set Aside and Vacate Default and Default Judgment is DENIED, without prejudice. In the event Defendant wishes to re-file the present Motion, Defendant must ensure the procedural issues discussed above are wholly remedied, and further ensure that a declaration is submitted which sets forth the facts required by Code of Civil Procedure section 473.5, subdivision (c). (Code Civ. Proc., § 473.5, subd. (c).)