Judge: Steven A. Ellis, Case: 22STCV31295, Date: 2025-05-28 Tentative Ruling

Case Number: 22STCV31295    Hearing Date: May 28, 2025    Dept: 29

Hayatipour v. City of Beverly Hills
22STCV31295
Motion to Set Aside Default filed by Defendant City of Beverly Hills.
Trial Setting Conference
OSC re Dismissal
OSC re Monetary Sanctions

Tentative

The motion to set aside entry of default is granted.

The OSCs are discharged.

Counsel should be prepared to proceed with Trial Setting Conference

Background

On September 22, 2022, Faramarz T. Hayatipour (“Plaintiff”) filed a complaint against City of Beverly Hills (“Defendant”) and Does 1 through 50 for (1) damages based on Governmental Tort Liability and Negligence, (2) negligence, (3) premises liability, (4) private nuisance, and (5) public nuisance, all arising out of an alleged slip and fall on September 22, 2021, at a parking structure near 461 N. Bedford Drive in Beverly Hills.

On September 18, 2024, Plaintiff filed a proof of service indicating personal service on Defendant on September 20, 2023.

On March 4, 2025, default was entered against Defendant.

On April 28, 2024, Defendant filed this motion to set aside the default.

No opposition has been filed.

Legal Standard

“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).)

“Under section 473, subdivision (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.)

Discussion

Defendant moves to set aside the default entered on March 4, 2025.  Defendant makes a number of arguments in support of its motion, including that service was not properly effected, rendering void the ensuing entry of default.

When service is disputed, “the burden is on the plaintiff to prove … the facts requisite to an effective service.”  (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413; see also, e.g., Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1163.)

Proper service of a summons on each defendant is a constitutional and statutory requirement in all civil actions.  Without proper service (or, for example, consent or waiver), a court does not acquire jurisdiction over a defendant, and in general any judgment rendered against the defendant is void.  (E.g., Kremerman v. White (2021) 71 Cal.App.5th 358, 371; County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1231.)

Plaintiff filed a proof of service stating that Defendant’s employee Cheryl Moore was served on September 20, 2023.  In support of Defendant’s motion, Ms. Moore has submitted a declaration stating that she was not served on September 20, 2023, and Defendant has no record of any service on that date.  (Moore Decl., ¶ 4.)  According to Moore, Defendant was served on February 28, 2025.  (Id., ¶ 5.)

The Court has reviewed the evidence.  The Court finds that the declaration of Ms. Moore is credible and credits it.  The Court finds that Defendant was not served on September 20, 2023, and grants the motion to set aside the default entered on March 4, 2025.

The Court grants Defendant 30 days from the date of this hearing to answer or otherwise respond to the complaint.

The Court will proceed with the Trial Setting Conference.

The Court discharges the OSC re Dismissal.

The Court discharges the OSC re Monetary Sanctions.

Conclusion

The Court GRANTS Defendant City of Beverly Hill’s motion to set aside the entry of default.

The Court SETS ASIDE the default of Defendant City of Beverly Hills entered on March 4, 2025.

The Court ORDERS Defendant City of Beverly Hills to answer or otherwise respond to the complaint within 30 days.

The Court DISCHARGES the OSC re Dismissal.

The Court DISCHARGES the OSC re Monetary Sanctions.

The Court SETS trial in this matter on __/__/26, at 8:30 a.m., in Department 29 of the Spring Street Courthouse.

Moving party is ordered to give notice.