Judge: Wesley L. Hsu, Case: 22PSCV00341, Date: 2023-03-15 Tentative Ruling
Case Number: 22PSCV00341 Hearing Date: March 15, 2023 Dept: L
Defendant Zifa Lin’s Motion to Set Aside the Default
Judgment and to Stay Execution of Default Judgment is GRANTED.
Background
This is an
unlawful detainer action involving the commercial premises located at 17800
Castleton
Street, Suites 303 and 306, City of Industry, CA 91748.
On April 6, 2022, Plaintiff Puente Hills Business Center II,
L.P. (“Plaintiff”) filed a complaint, asserting a cause of action against
Phoetech Group, Inc. (“Phoetech”), Zi Fa Lin aka Zifa Lin (“Lin”) and Does 1-10
for:
1.
Unlawful Detainer
On April 26, 2022, Phoetech’s and Lin’s defaults were
entered; that day, a clerk’s default judgment for possession only was filed. On
April 29, 2022, a writ of possession of real property was issued.
On December 29, 2022,
default judgment was filed.
Legal Standard
Code of Civil Procedure Section 473.5
Where a service of summons has not resulted in actual notice
to a party in time to defend the action, the party may move the court to set
aside default and default judgment. (Code Civ. Proc., § 473.5, subd. (a).) The motion must be made “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.”
(Id.) The party must act with
diligence upon learning of the judgment.
(Trackman v. Kenney (2010) 187
Cal.App.4th 175, 180; Code Civ. Proc., §473.5, subd. (a).)
The party seeking to set aside must also submit a
declaration that lack of actual notice in time to defend the action was not
caused by his or her avoidance of service or inexcusable neglect and a copy of
the proposed answer, motion, or other pleading proposed to be filed in the
action. (Code Civ. Proc., § 473.5, subd.
(b).)
Code of Civil
Procedure § 473.5 “is designed to provide relief where there has been proper service of summons (e.g., by
substitute service or by publication) but defendant nevertheless did not find
out about the action in time to defend. Typically, these are cases in which
service was made by publication.” (See Weil & Brown et al., CAL. PRAC.
GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2019) ¶ 5:420.
Upon a finding by the court that the defendant’s lack of
actual notice prevented him or her from defending the action, “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. (d); Goya v.
P.E.R.U. Enterprises (1978) 87 Cal.App.3d 886, 893.)
Code of Civil Procedure Section 473, subdivision (d)
“The court may, upon motion of the injured party, or its own
motion, correct clerical mistakes in its judgment or orders as entered, so as to
conform to the judgment or order directed, and may, on motion of either party
after notice to the other party, set aside any void judgment or order.” (Code
Civ. Proc., § 473, subd. (d).)
Equitable Relief
Apart from any statutory authority, a court has inherent,
equitable power to set aside a judgment on the basis of extrinsic fraud or
mistake. (Olivera v. Grace (1942) 19 Cal.2d 570, 576-577.) “[T]he party
seeking equitable relief on the grounds of extrinsic fraud or mistake must show
three elements: (1) a meritorious defense; (2) a satisfactory excuse for not
presenting a defense in the first place; and (3) diligence in seeking to set
aside the default judgment once discovered.” (Rodriguez v. Cho (2015)
236 Cal.App.4th 742, 750.)
Lin moves the court
for an order, per Code of Civil Procedure §§ 473, subdivision (d), 473.5 and
128, subdivision (a)(8), setting aside the default judgment entered in this
case and to immediately stay execution of the judgment.
The motion was originally set for hearing on February 15,
2023 before Judge Peter A. Hernandez; on that date, the court adopted the
following tentative ruling as the final order:
“Lin contends, inter alia, that he
was never served with the summons and
complaint. His accompanying
declaration, however, is directed to proof of
service attached as Exhibit B to
the motion, which reflects substitute service of
the summons and complaint on April
8, 2022 upon a ‘Jane Doe’ at 13164 San
Rafael Drive, Chino Hills, CA 91709
(the ‘San Rafael address’). Plaintiff’s
counsel Yuri Gutierrez (‘Gutierrez’)
attests, however that shortly after April 8,
2022, his office was provided with
the aforementioned proof of service and also
received another proof of service
reflecting substitute service on Lin at the
address of 12951 Waterlily Way,
Chino Hills, CA 91709 (‘the Waterlily address’). (Gutierrez Decl., ¶ 2.)
Gutierrez attests that he noticed after receiving the instant
motion that he has inadvertently
forgotten to file the proof of service as to the
Waterlily address and that this
proof of service has since been filed, on or about
January 27, 2023. (Id.)
Based on these circumstances, Lin
is requested to file a supplemental declaration
with the court limited to, and specifically
addressing, the Waterlily address proof
of service filed January 27, 2023
with the court. Liu’s supplemental declaration
must be filed and served no later
than 9 court days prior to the continued hearing
date. Plaintiff is permitted to
file a supplemental brief limited to the information set
forth in Lin’s supplemental
declaration; said brief must be filed and served no later
than 5 court days prior to the continued
hearing date.”
On February 27, 2023, Lin filed a supplemental declaration,
wherein he reiterates that he currently lives, and has been living, at the
Waterlily address since February 2018 (Lin Supp. Dec., ¶¶ 1 and 4), that he has
never received the summons and complaint in this case (Id., ¶ 4); that his
records reflect that he returned to Los Angeles from a business trip on April
7, 2022 and was home all day on April 8, 2022 (Id., ¶ 6); that if
someone came to the house looking for him on April 8, 2022, he would have
opened the door and accepted the service himself (Id., ¶ 7) and that he
lives with his wife and children and has no knowledge of the person identified
as “JANE DOE” in the proof of service (Id., ¶ 8) and that his wife is 40
years old and his children are 19 and 17 years old (Id.).
The court determines that the foregoing information is
insufficient to obtain relief under Code of Civil Procedure § 473, subdivision
(d). Lin did not establish that his wife was incapable of answering the door at
the Waterlily address on April 8, 2022, nor has he provided a declaration from
his wife confirming that service did not occur as stated in the proof of
service.
With that said, Lin has also sought relief on the basis of
Code of Civil Procedure § 473.5. Lin has provided a declaration attesting that
he has “never received the Summons and Complaint in this case” (Lin Decl., ¶ 4)
and that he “did not avoid service of' the legal papers or do anything else
that interfered with the notice of the Summons and Complaint that were meant
for [him]” (Id., ¶ 10.)
The court determines that Lin’s statements are corroborated
by his actions in June 2022. Lin attests that in early June 2022 (i.e.,
subsequent to the April 26, 2022 entry of default and clerk’s default judgment
for possession only and the April 29, 2022 issuance of a writ of possession of
real property) he was contacted by Plaintiff’s management company “to sign a
certain document on behalf of a tenant of the building located at 17800 Castleton
Street, Suite 10 303/306, City of Industry, CA 91748” (Id., ¶ 11), that
he was told that “said tenant abandoned the premises and that [he] ha[d] to
sign a consent for the landlord to dispose the properties left in the premises
on behalf of the tenant as [his] name is listed as the guarantor of the
tenant's lease” (Id., ¶ 12), that
he “was surprised to learn that information since [he] never signed any
document for any other individual or entity as a guarantor and explained to the
person that [he] ha[d] no relationship with the premises or tenant and someone
must have forged my signatures” (Id., ¶ 13), that on June 7, 2022, he
“received a text message from the management company regarding a scheduled
appointment on June 8, 2022 at 1:30 p.m.” (Id., ¶ 14), that “[u]pon
[his] arrival, [he] was presented with a lease agreement between the Plaintiff
and a company named Phoetech Group, Inc., along with a lease application, which
contained [his] personal information and what are alleged to be [his] signatures
as a guarantor” (Id., ¶ 15), that he “explained to the female management
officer that someone must have forged [his] signatures as [he] do[es] not have
any relationship whatsoever with the premises or the tenant, Phoetech Group,
Inc.” (Id., ¶ 16), that “[i]n response, the female management officer
told [him] that [he] could simply submit a Declaration to the Building
Management to clarify the same” (Id., ¶ 17), that “[t]roughout the
meeting, [he] was never advised about the then-existing lawsuit, and no Summons,
Complaints, or any other legal documents were provided to me before, during or
after his meeting (Id., ¶ 18), that he “[t]hereafter. . . retained the
Demidchik Law Firm, P.C. to draft a Declaration for [him] to the Building
Management, which was later hand-delivered to the management company on or
about June 10, 2022” (Id., ¶ 19), that a
copy of said declaration is attached as Exhibit E (Id.) and that he
“first learned about this lawsuit in December of 2022, when [he] received
several notices from Wells Fargo regarding the withdrawals made from [his]
personal and business bank accounts” (Id., ¶ 20).
Lin, moreover, has provided the court with a copy of his
proposed responsive pleading in his reply brief. (See Exhibit G).
The motion, then, is granted on the basis of Civil Procedure
§ 473.5.