Judge Timothy B. Taylor, Case 37-2023-00015276-CU-UD-CTL 2023-09-15 Tentative Ruling

Judge: Timothy B. Taylor, Case: 37-2023-00015276-CU-UD-CTL, Date: 2023-09-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 14, 2023

09/15/2023 01:30:00 PM C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Timothy Taylor

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Civil - Unlimited Unlawful Detainer - Residential Motion Hearing (UD) 37-2023-00015276-CU-UD-CTL THE RESIDENCES AT COTA VERA LLC VS AMENRA [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Set Aside Default, 09/06/2023

Tentative Ruling on Motion to Set Aside Default The Residences at Cota Vera v. Amenra, Case No. 2023-15276 Sept. 15, 2023, 1:30 p.m., Dept. 72 1. Overview and Procedural Posture.

This is a residential unlawful detainer case involving real property in Chula Vista. Plaintiff alleges that defendant defaulted in the payment of rent beginning in March 2023. A three-day notice to pay rent or quit was served shortly thereafter. The complaint was filed in April 2023.

After five unsuccessful attempts to personally serve defendant at her residence, plaintiff applied to the court for an order to serve the complaint and summons by posting. ROA 8-9. The court issued the requested order on June 2, 2023. ROA 9. Service was completed a few weeks later. ROA 12, 15.

When defendant failed to timely file a responsive pleading, plaintiff obtained her default. ROA 14, 16. A default judgment has also been entered. ROA 20-21.

Defendant now moves to set aside the default. ROA 18, 30-31. Plaintiff filed opposition. ROA 33-34.

The lockout of the property is currently stayed. ROA 32.

2. Applicable Standards.

A. '[F]ormal service of process involves two aspects: service as a method of obtaining personal jurisdiction over a defendant and formalized notification of court proceedings to allow a party to appear and defend against the action.' Rockefeller Technology Investments (Asia) VII v. Changzhou SinoType Technology Co., Ltd. (2020) 9 Cal.5th 125, 143. A method of service is constitutionally valid only if it provides 'notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action.' Mullane v. Central Hanover Bank & Trust Co. (1950) 399 U.S. 306, 314.

B. A plaintiff in an unlawful detainer action may serve the summons and complaint by posting and mailing – known colloquially as 'nail and mail' service: 'A summons in an action for unlawful detainer of real property may be served by posting if upon affidavit Calendar No.: Event ID: TENTATIVE RULINGS

3010065 38 CASE NUMBER: CASE TITLE: THE RESIDENCES AT COTA VERA LLC VS AMENRA [IMAGED] 37-2023-00015276-CU-UD-CTL it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in any manner specified in this article other than publication[.]' Code Civ. Proc. § 415.45(a).

C. Code of Civil Procedure section 473(b) provides two distinct provisions for relief from default. Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 838. One affords discretionary relief, and the other makes relief mandatory. Defendants have expressly invoked the former, which provides that '[t]he 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.' Code Civ. Proc. § 473(b). To obtain discretionary relief under section 473, the moving party must show the requisite mistake, inadvertence, or excusable neglect. McClain v. Kissler (2019) 39 Cal.App.5th 399, 414.

D. A party who has not been properly served with a summons has three avenues of relief from a default judgment. Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180.

First, the party may bring a motion under Code of Civil Procedure section 473.5(a), which applies '[w]hen service of a summons has not resulted in actual notice to a party in time to defend the action.' Such a motion must be brought within a 'reasonable time' not to exceed the earliest of either two years after entry of the default judgment or 180 days after service of written notice that the default or default judgment has been entered. Code Civ. Proc. § 473.5(a).

Code of Civil Procedure section 473(d) provides a second avenue for relief from a default judgment based on improper service. That statute allows the court to 'set aside any void judgment or order.' There is no time limit for bringing an action under subdivision (d) if the judgment can be shown to be invalid on the face of the record. Trackman, 187 Cal.App.4th at 181. However, where a party moves under section 473(d) to set aside a judgment that, although facially valid, is void for lack of proper service, the courts have applied a two-year statutory time limit for bringing such motions, by analogy to the two-year statutory time limit for motions under section 473.5. Id. at 180.

Finally, a court has the inherent authority to set aside a default judgment based on nonstatutory, equitable grounds 'if it has been established that extrinsic factors have prevented one party to the litigation from presenting his or her case.' In re Marriage of Park (1980) 27 Cal.3d 337, 342. There is no fixed time limit for seeking relief from a default judgment on equitable grounds, provided the party acts with diligence upon learning of the relevant facts.' Trackman, 187 Cal.App.4th at 181.

E. The court is mindful that defendant represent herself. However, her status as a party appearing in propria persona does not provide a basis for preferential consideration. 'A self-represented party is to be treated like any other party and is entitled to the same, but no greater, consideration than other litigants having attorneys.' Elena S. v. Kroutik (2016) 247 Cal.App.4th 570, 574. '[T]here are no special exemptions from the California Rules of Court or California Code of Civil Procedure for litigants in propria persona.' People v. Neilson (2007) 154 Cal.App.4th 1529, 1534.

3. Discussion and Ruling.

The unopposed motion to set aside the default and default judgment is denied.

A. The motion is denied for defective service. 'The moving and supporting papers served shall be a copy of the papers filed or to be filed with the court.' Code Civ. Proc. § 1005(b). Here, it appears that defendant did not comply with this requirement. The moving papers filed with the court include a declaration from defendant (ROA 31), as well as a proposed answer (ROA 30 at pp. 8-12). The opposition, however, argues that both of these documents are missing. (See Oppo. at 2:27-3:2, 4:10.) This has the ring of truth, because what plaintiff describes is the same as what was handed to the court by defendant at last week's ex parte hearing. Accordingly, defendant was not properly served.

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3010065 38 CASE NUMBER: CASE TITLE: THE RESIDENCES AT COTA VERA LLC VS AMENRA [IMAGED] 37-2023-00015276-CU-UD-CTL B. The motion is also denied on the merits.

Defendant has failed to show that her lack of notice of the action was not caused by avoidance of service or inexcusable neglect. Code Civ. Proc. § 473.5(b).

There is likewise no evidence suggesting that defendant's failure to respond to the complaint was due to mistake, inadvertence, surprise, or excusable neglect. See Code Civ. Proc. § 473(b); see also Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1293 ('The mere recital of mistake, inadvertence, surprise or excusable neglect is not sufficient to warrant relief.').

Finally, defendant has failed to establish improper service of the summons. '[A] registered process server's declaration of service establishes a presumption that the facts stated in the declaration are true.' Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750. Here, the proof of service – executed under penalty of perjury – shows that the process server posted the summons at defendant's residence. In an attempt to rebut the presumption of valid service, defendant contends that a copy of the summons was not placed on her door. But defendant does not dispute that the address listed in the proof of service is her residence. Nor does she deny that the summons was posted somewhere at the premises. Absent such further detail, the court finds that defendant has failed to establish that she was not properly served pursuant to section 415.45. See Falahati v. Kondo (2005) 127 Cal.App.4th 823, 828 ('It is the province of the trial court to determine the credibility of the declarants and to weigh the evidence.'); see also American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390 (trial court not required to accept 'self-serving evidence contradicting the process server's declaration').

The stay of the lockout is hereby lifted.

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