Judge: Yolanda Orozco, Case: 20STCV20927, Date: 2023-02-16 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind:

The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

Oral argument is not an opportunity to simply regurgitate that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated.

If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. 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 motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.

**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

Case Number: 20STCV20927    Hearing Date: February 16, 2023    Dept: 31

MOTION TO VACATE AND SET ASIDE

 DEFAULT JUDGMENT 

Background 

On June 3, 2020, Plaintiffs Mirna Garcia Sarceno (“Mirna”); Nixon Gomez (“Gomez”); Enas Garcia (“Enas”); Zoe Martinez-Garcia, by and through her guardian ad litem, Mirna Garcia Sarceno (“Zoe”); Wyatt Martinez-Garcia, by and through his guardian ad litem, Mirna Garcia Sarceno (“Wyatt”); Ervin Ramirez Garcia, by and through his guardian ad litem, Mirna Garcia Sarceno (“Ervin”); and Lesly Ramirez Garcia, by and through her guardian ad litem, Mirna Garcia Sarceno (“Lesly”) filed the instant action against Defendant Ploenidph Houston and Does 1 through 50. The Complaint asserts causes of action for: 

1.               Breach of Warranty of Habitability; 

2.               Breach of Covenant of Quiet Enjoyment; 

3.               Negligence; and 

4.               Breach of Contract.  

On January 25, 2021, Does 1 to 50 were dismissed. 

On March 19, 2021, Default Judgment was granted in favor of the  Plaintiffs. 

On October 24, 2022, Defendant moved to Set Aside Default and Default judgment. 

Plaintiff filed opposing papers on January 32, 2023. No reply has been filed.    

Legal Standard 

California Code of Civil Procedure section 473.5 sets out the specific instances in which Entry of Default or Default Judgment can be set aside or vacated.   

“a)¿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.  

(b)¿A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.  

(c)¿Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.” 

(Id.) 

Discussion 

Defendant moves to set aside the default and vacate the default judgment on the basis that substitute service at 106 S. New Hampshire, Los Angeles, CA 90094 was improper because at the time of service Defendant resided at 1159 N. Western Ave., Los Angeles, CA 90029. (Houston Decl. ¶¶ 5, 6, Ex. 2, 3.) 

Defendant does not deny its motion is untimely under the six-month deadline to move for discretionary relief from default under section 473. (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42 [“The six-month period runs from entry of default, not entry of judgment.”].) 

Under California Code of Civil Procedure section 473.5 the Court may set aside a judgment if a motion is brought within 2 years and the moving party demonstrates that service of a summons has not resulted in actual notice to a party in time to defend the action. 

The Los Angeles County Recorder's Office lists Defendant as the owner of another property at 106 S. New Hampshire Avenue, Los Angeles, CA 90004. (Soto Decl. Ex. D.) A Liliana Doe accepted service on July 1, 2020 at that location. (Soto Decl. Ex. F.) On March 31, 2021, USA Express Legal and Investigative Service confirmed 106 S. New Hampshire to be Defendant’s home address. (Soto Decl. Ex. G.) 

Defendant asserts she learned of the default when she attempted to refinance her property. Plaintiffs presents evidence that the address on the lien release related to the refinance of Defendant’s property is 106 S. New Hampshire Avenue. (Soto Decl. Ex. H.)

Accordingly, the Court finds that service of process at Defendant’s known home address was calculated to give Defendant actual notice of this action. 

The Court has equitable power to set aside the default and default judgment if the order was obtained due to fraud (extrinsic or intrinsic). (See Peterson v. Peterson (1955) 135 Cal.App.2d 812, 814 [false testimony]; Batchelor v. Finn (1959) 169 Cal.App.2d 410, 413 [suppression of evidence].) 

Defendant fails to present evidence of fraud. Despite Defendant asserting that it did not learn of this action until May 17, 2022, Defendant admits that on November 28, 2019, Defendant received a letter from Plaintiffs’ attorney regarding this action. (See Mot. at p. 3, lines 12-13, lines22-22.) 

Plaintiffs assert a process server attempted to serve Defendant at 1159 N. Western Avenue on June 19, 20202, June 21, 2020, and June 24, 2020. The 1159 N. Western Avenue location is a business/bar that was closed due to COVID-19 and service at the address was not possible. (Soto Decl. Ex. D.) 

For the reasons stated, the Court finds that Defendant had actual notice of this action through service at Defendant’s home address and has failed to present evidence of fraud sufficient to grant Defendant equitable relief from the Default Judgment. 

The Motion is DENIED. 

Conclusion 

Defendant’s Motion to Vacate and Set Aside Default and Default Judgment is DENIED. 

Defendant to give notice.