Judge: Virginia Keeny, Case: 21VECV01514, Date: 2023-02-06 Tentative Ruling

Case Number: 21VECV01514    Hearing Date: February 6, 2023    Dept: W

OREN KONENKOV, ET AL. V. EXPO DESIGN & DEVELOPMENT, INC., DBA EXPO CONSTRUCTION, ET AL.

MOTION TO SET ASIDE DEFAULT JUDGMENT

Date of Hearing:        February 6, 2023                               Trial Date:       N/A

Department:              W                                                        Case No.:        21VECV01514

Moving Party:            Defendants Avraham Gutman and Sharon Trumer

Responding Party:     No opposition.

BACKGROUND

Plaintiffs Oren and Lina Konenkov allege on August 10, 2020, Plaintiffs and Defendants Expo Design & Development, Inc. dba Expo Construction, Avraham Gutman, Sharon Trumer, and Celio Eugenio Cruz entered into an agreement by which Defendants agreed to furnish certain labor, services, equipment and materials for construction work pertaining to improvement to Plaintiffs’ property located in Woodland Hills. The agreed upon price was $348,809.00. Between the time that Plaintiffs first entered into the Agreement and October 26, 2020, Plaintiffs paid Defendants the sum of $256,244.90. Plaintiffs further allege any work that Defendants have performed at the Property to date, was not permitted by the relevant governmental agencies as required by law and in November 2020, Plaintiffs terminated Defendants’ access to the Property and requested that Defendants comply with their statutory obligation to return the $256,244.90 that Plaintiffs had paid Defendants to date. However, Defendants refused to return any of money Plaintiffs had paid Defendants.

On November 5, 2021, Plaintiffs filed a complaint against Defendants asserting causes of action for 1) Disgorgement of Compensation Paid to Unlicensed Contractor (B&P Code §7031); 2) Fraud; 3) Breach of Contract; 4) Breach of Implied Warranty and Implied Covenant to Perform Work in a Good and Competent Manner; 5) Breach of Implied Covenant of Good Faith and Fair Dealing; 6) Negligence; and 7) Unfair Business Practices (B&P Code §17200).

On April 21, 2022, Defendant Expo Construction was dismissed.

On August 26, 2022, default judgment was entered against Defendants Avraham Gutman and Sharon Trumer.

TENTATIVE RULLING

Defendants Avraham Gutman and Sharon Trumer’s Motion to Set Aside Default Judgment is GRANTED.

DISCUSSION

Defendants Avraham Gutman and Sharon Trumer move the court for an order to set aside the default judgment entered against them on August 26, 2022. Defendants make the motion pursuant to Code of Civil Procedure section 473(b) on the grounds that the judgment was entered as a result of extrinsic fraud/mistake.

Code of Civil Procedure section 473(b) contains two distinct provisions for relief. The first provision is discretionary and broad in scope, providing: “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.” (CCP §473(b).)

The second provision is mandatory and narrowly covers only default judgments and defaults that will result in entry of judgments. It states: “[T]he court shall, whenever application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (CCP §473(b).)

The court finds Code of Civil Procedure section 473(b) inapplicable. Defendants are not moving on the grounds of mistake, inadvertence, surprise or excusable neglect. Rather, the court finds Code of Civil Procedure section 473.5 appropriate.

Defendants argue they never received proper notice of the action against them as Plaintiffs served a non-existing “housekeeper” although Defendants do not employ a “housekeeper” at their residences. Defendants also argue the Proof of Service also mistakenly states substituted service occurred at Defendants’ business; however, the address provided is Defendants’ residential address.

First, the court notes that the proofs of service might have originally marked the address as the Defendants’ business but it appears to have been a mistake. Plaintiff later filed corrected proofs of service listing the address served as Defendants’ residence. Moreover, a proof of service containing a declaration from a registered process server invokes a rebuttable presumption of valid service. (See American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; see also Evid. Code § 647.) The party seeking to defeat service of process must present sufficient evidence to show that the service did not take place as stated. (See Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1428; cf. People v. Chavez (1991) 231 Cal.App.3d 1471, 1483 (“If some fact be presumed, the opponent of that fact bears the burden of producing or going forward with evidence sufficient to overcome or rebut the presumed fact.”).) Merely denying service took place without more is insufficient to overcome the presumption. (See Yadegar, supra, 194 Cal.App.4th at 1428.)

Although there is a presumption of valid service by the registered process server, the court finds Defendants’ supporting declaration presents sufficient facts to demonstrate that they lacked notice of this action and that any purported lack of notice was not caused by avoidance of service or inexcusable neglect. Defendants attest, under penalty of perjury, that they do not employ a housekeeper. (Gutman Decl. ¶5; Truman Decl. ¶5.) Defendants further attest they never received the purported mailed documents from the process server. (Gutman Decl. ¶4; Truman Decl. ¶4.) Defendants claim they only discovered the action once they received the judgment package in the mail in September 2022. (Gutman Decl. ¶6; Truman Decl. ¶6.) Moreover, the court finds Defendants were timely in moving to set aside the default. Judgment was entered in August. Once Defendants discovered the default judgment in September, they obtained counsel and filed the instant motion in November.

This motion is unopposed. Accordingly, Defendants Avraham Gutman and Sharon Trumer’s Motion to Set Aside Default is GRANTED.