Judge: William A. Crowfoot, Case: 22AHCV00312, Date: 2023-05-17 Tentative Ruling

Case Number: 22AHCV00312    Hearing Date: May 17, 2023    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT

Default judgment was entered against defendant United Valet Parking, Inc. (“Defendant”) on March 3, 2023.  On April 5, 2023, Defendant filed this motion to set aside the default judgment.  Defendant argues that the default judgment should be set aside pursuant to CCP sections 473.5, 473(b) and 473(d), as well as the Court’s equitable powers.  Defendant claims it did not have actual knowledge of this Action in time to defend the action and its lack of actual knowledge was not caused by its avoidance of service or inexcusable neglect.  Defendant also claims that the request for entry of default and default judgment were defective because they were not addressed to its agent for service of process, Kenny Sabet, therefore the default should not have bene entered. Defendant additionally argues that it was not properly served with the summons and complaint. 

On May 3, 2023, plaintiff Greenoak Investments, LLC (“Plaintiff”) filed an opposition to Defendant’s motion.  Defendant filed a reply brief on May 10, 2023.  

The proof of service of summons filed on July 26, 2022 shows that Defendant, through its registered agent Kenny Sabet (“Sabet”), was served by substituted service on June 13, 2022 by leaving the summons and complaint with a “John Doe” Hispanic male, about 30 years old, 5 feet and 6 inches tall, weighing about 160 pounds, at 5839 Green Valley Circle, Suite 202, in Culver City, California (“Green Valley Address”).  The registered process server, “I. Anis”, also declares that he mailed copies of the summons and complaint on June 14, 2022, to the Green Valley Address.

In requesting relief from the default judgment, Defendant claims that no person matching the description of John Doe works at its office and no mailing was ever received as to this lawsuit until it reviewed its bank account on March 24, 2023, and saw a withdrawal of over $245,000 and received a “Notice of Levy” from the San Diego County Sheriff on March 27, 2023.  (Motion, pp. 4-5.)
          Defendant submits multiple declarations from Sabet and other employees who declare that there are only two males generally present in the office: Sabet and Abbas “Alex” Fathollaei (“Fathollaei”).  Also, there are generally only three females in the office: Najieh Majidi, Daisy M. Nguyen, and Mary Joy L. Pelayo.  The only employees who exercise control over the front office or office are Sabet, Ms. Nguyen and Ms. Pelayo.  Both Sabet and Fathollaei declare that they have never been handed any papers indicating that those papers had any legal implications for Defendant and they further describe themselves as mostly bald and in their 60s.  (Sabet Decl., ¶ 6; Fathollaei Decl., ¶ 3.)  Defendants’ employees describe the process for receiving and processing mail and accepting documents from couriers and process servers and aver that no papers relating to this action were ever mailed or delivered. 

In opposition, Plaintiff argues that Defendant’s employees’ declarations are not credible.  Plaintiff submits the declaration of the registered process server, Ihab Anis, who declares that he is familiar with Defendant’s offices and has served Sabet personally when Sabet is present.  He has also served the same Hispanic male for a different case, Case No. 21STLC02513, on May 20, 2021, which is about a year prior to the date of service alleged in the proof of service for this action.  Plaintiff’s counsel, David M. Cohen, additionally declares that he has handled all his mailing for his office as a sole practitioner and has never received any returned mail for the request for entry of default or request for default judgment that he mailed.  He also declares that he has reviewed proofs of service by substituted service on Defendant since 2020 in different cases and, in several instances, Hispanic males were served. (RJN, Exs. 2-3.)  The individual is named as “Lucas Martinez” and “Mateo Nathan” on these two proofs of service filed in Case Nos. 21STCV23423 and 21STCV38954. 

However, although the declaration of Ihab Anis is admissible, Defendant correctly argues that the Court may not judicially notice the proof of service filed in the other two cases for the truth of the matter asserted, which is that a Hispanic male was actually served in those cases.

In light of the multiple declarations attesting to Defendant’s process for receiving and distributing mail, as well as the limited number of employees who would have been present in the office, the Court finds sufficient evidence to conclude that Defendant’ failure to respond to the Complaint was due to surprise and lack of actual notice.

          Accordingly, the default judgment is set aside and the entry of default is vacated.  Defendant is ordered to file the proposed answer, attached as Exhibit A to the Declaration of Elvis Tran, within 5 days of the date of this hearing.   

Moving party to give notice.

Dated this 17th day of May, 2023

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.