On 04/04/2019 ERIC MILLER filed a Contract - Debt Collection lawsuit against SAMUEL ALEKSANIAN. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is RANDY RHODES. The case status is Disposed - Judgment Entered.
Disposed - Judgment Entered
Los Angeles County Superior Courts
Spring Street Courthouse
Los Angeles, California
ALEKSANIAN SAMUEL AKA SAMVEL ALEKSANIAN AKA SAMUEL ALEKSANYAN AKA SAMVEL ALEKSANYAN
BERKE MICHAEL N
GAROFALO ANDREW ESQ
BERKE MICHAEL NORMAN
10/9/2020: Declaration (name extension) - Declaration of Sam. Aleksanian in support of Motion to set aside default
9/10/2020: Opposition (name extension) - Opposition PLAINTIFF ERIC MILLERS SUPPLEMENTAL OPPOSITION TO DEFENDANT SAMUEL ALEKSANIANS MOTION TO SET ASIDE DEFAULT JUDGMENT AND DEFAULT; MEMORANDUM OF POINTS AND AUT
6/24/2020: Notice (name extension) - Notice of Change of Law Firm Address
5/12/2020: Writ - Return - Writ - Return
11/15/2019: Notice (name extension) - Notice of motion and motion to set aside default judgment and default; memorandum of points of authorities; Declarations of Samuel Aleksanian and Andrew Garofalo in support.
11/15/2019: Declaration (name extension) - Declaration of Samuel Aleksanian in support of motion to set aside default judgment and default
1/17/2020: Opposition (name extension) - Plaintiff Eric Miller's Opposition to Defendant Samuel Aleksanian's Motion to Set Aside Default Judgment and Default
1/31/2020: Certificate of Mailing for - Certificate of Mailing for (Hearing on Motion to Set Aside/Vacate Default and Default Jud...) of 01/31/2020
1/31/2020: Minute Order - Minute Order (Hearing on Motion to Set Aside/Vacate Default and Default Jud...)
1/31/2020: Order (name extension) - Designation-Transfer Order for Non-Collection Hub Case
3/18/2020: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order
6/28/2019: Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest - Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest
5/30/2019: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment
5/31/2019: Default Judgment - Default Judgment
4/18/2019: Proof of Mailing (Substituted Service) - Proof of Mailing (Substituted Service)
4/4/2019: Complaint - Complaint
4/4/2019: Summons - Summons on Complaint
4/4/2019: Civil Case Cover Sheet - Civil Case Cover Sheet
Hearing10/27/2020 at 10:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion to Set Aside/Vacate Default and Default Judgment (CCP 473.5)Read MoreRead Less
DocketBrief Samuel Aleksanian's supplemental briefing to motion to set aside entry of default and default judgment; memorandum of points and authorities; declaration of samuel aleksanyan; Filed by: SAMUEL ALEKSANIAN (Defendant)Read MoreRead Less
DocketDeclaration of Sam. Aleksanian in support of Motion to set aside default; Filed by: SAMUEL ALEKSANIAN (Defendant)Read MoreRead Less
DocketOpposition PLAINTIFF ERIC MILLER?S SUPPLEMENTAL OPPOSITION TO DEFENDANT SAMUEL ALEKSANIAN?S MOTION TO SET ASIDE DEFAULT JUDGMENT AND DEFAULT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF MICHAEL N. BERKE IN SUPPORT THEREOF; Filed by: ERIC MILLER (Plaintiff)Read MoreRead Less
DocketMinute Order (Hearing on Motion to Set Aside/Vacate Default and Default Jud...)Read MoreRead Less
DocketOn the Court's own motion, Hearing on Motion to Set Aside/Vacate Default and Default Judgment (CCP 473.5) scheduled for 08/20/2020 at 10:30 AM in Spring Street Courthouse at Department 25 Held - Continued was rescheduled to 10/27/2020 10:30 AMRead MoreRead Less
DocketUpdated -- Andrew Garofalo, Esq (Attorney): First Name changed from MICHAEL to Andrew; Last Name changed from BERKE to Garofalo; Organization Name: Tribune Law Group, PC; Name Suffix: Esq; Middle Name: blankRead MoreRead Less
DocketAddress for Andrew Garofalo, Esq (Attorney) updatedRead MoreRead Less
DocketNotice of Change of Law Firm Address; Filed by: SAMUEL ALEKSANIAN (Defendant); As to: ERIC MILLER (Plaintiff)Read MoreRead Less
DocketUpdated -- Writ of Execution (LOS ANGELES): Filed By: ERIC MILLER (Plaintiff); Result: Returned and Filed; Result Date: 05/12/2020Read MoreRead Less
DocketDefault entered as to SAMUEL ALEKSANIAN; On the Complaint filed by ERIC MILLER on 04/04/2019Read MoreRead Less
DocketProof of Mailing (Substituted Service); Filed by: ERIC MILLER (Plaintiff); As to: SAMUEL ALEKSANIAN (Defendant); Mailing Date: 04/10/2019; Service Cost: 65.00; Cost Waived: NoRead MoreRead Less
DocketComplaint; Filed by: ERIC MILLER (Plaintiff); As to: SAMUEL ALEKSANIAN (Defendant)Read MoreRead Less
DocketSummons on Complaint; Issued and Filed by: ERIC MILLER (Plaintiff); As to: SAMUEL ALEKSANIAN (Defendant)Read MoreRead Less
DocketCivil Case Cover Sheet; Filed by: ERIC MILLER (Plaintiff); As to: SAMUEL ALEKSANIAN (Defendant)Read MoreRead Less
DocketOrder to Show Cause Hearing/Trial Date (Cal. Rules of Court, rule 3.740); Filed by: ClerkRead MoreRead Less
DocketNotice of Case Assignment - Limited Civil Case; Filed by: ClerkRead MoreRead Less
DocketOrder to Show Cause Re: Failure to File Proof of Service and Failure to File Default Judgment Pursuant to CRC 3.740 scheduled for 04/09/2020 at 08:30 AM in Chatsworth Courthouse at Department F43Read MoreRead Less
DocketThe case is placed in special status of: Collections Case (CCP 3.740)Read MoreRead Less
DocketCase assigned to Hon. Randy Rhodes in Department F43 Chatsworth CourthouseRead MoreRead Less
Case Number: 19CHLC12635 Hearing Date: August 20, 2020 Dept: 25
HEARING DATE: Thu., August 20, 2020 JUDGE /DEPT: Blancarte/25
CASE NAME: Miller v. Aleksanian COMPL. FILED: 04-04-19
CASE NUMBER: 19CHLC12635 DEFAULT: 05-30-19
NOTICE: OK DEF. JDMT: 05-31-19
PROCEEDINGS: MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT
MOVING PARTY: Defendant Samuel Aleksanian
RESP. PARTY: Plaintiff Eric Miller
MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT
(CCP §§ 473; 437.5)
Defendant Samuel Aleksanian’s Motion to Set Aside Default and Default Judgment is CONTINUED TO OCTOBER 27, 2020 at 10:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, the parties must file and serve supplemental papers addressing the deficiencies identified herein. Failure to do so may result in the Motion being placed off calendar or denied.
[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK
[X] Correct Address (CCP §§ 1013, 1013a) OK
[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK
OPPOSITION: Filed on January 17, 2020 [ ] Late [ ] None
REPLY: Filed on January 24, 2020 [ ] Late [ ] None
On April 4, 2019, Plaintiff Eric Miller (“Plaintiff”) filed an action for breach of contract and common counts against Defendant Samuel Aleksanian (“Defendant”). Plaintiff filed a proof of service demonstrating that on April 10, 2019, Defendant was served via substitute service by leaving the Summons and Complaint with Shelly Pitman, a mailbox clerk, at 11684 Ventura Blvd., #141, Studio City, CA (the “Private Mailbox Address”). (4/18/19 Proof of Service.) Following Defendant’s failure to appear, default was entered against him on May 30, 2019, and default judgment was entered the following day, on May 31, 2019, in the amount of $15,138.47. (5/31/19 Judgment.)
On November 15, 2019, Defendant filed the instant Motion to Set Aside Default and Default Judgment (the “Motion”). On January 17, 2020, Plaintiff filed an opposition, and on January 24, 2020, Defendant filed a reply.
On January 31, 2020, Department F43 of the Chatsworth Courthouse transferred the action to Department 25 and scheduled the hearing for the Motion for April 14, 2020. (1/31/20 Minute Order.) On its own motion, the Court continued the hearing to August 20, 2020 at 10:30 a.m. (3/18/20 Notice re Continuance of Hearing and Order.) Plaintiff was ordered to give notice of the continuance and file a proof of service demonstrating such notice was given. (Id.) Plaintiff filed the requested proof of service on April 1, 2020.
“‘A summons is the process by which a court acquires personal jurisdiction over a defendant in a civil action’ [citation], and a defendant has an absolute right to demand that process be issued against him in a manner prescribed by law.” (Mannesmann DeMag, Ltd. v. Superior Court (1985) 172 Cal.App.3d 1118, 1122.) “Constitutional due process requirements are satisfied where the form of service provided and employed is reasonably calculated to give a litigant actual notice of the proceedings and an opportunity to be heard.” (Crescendo Corp. v. Shelted, Inc. (1968) 267 Cal.App.2d 209, 213.) “‘[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.] Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. [Citation.]’” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.) There is no time limit on when a void judgment can be challenged. (Deutsche Bank National Trust Co. v. Pyle (2017) 13 Cal.App.5th 513, 526 (citing Falahati v. Kondo (2005) 127 Cal.App.4th 823, 830; Code Civ. Proc., § 473, subd. (d)).)
Code of Civil Procedure section 473.5 states, in relevant part:
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.
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.
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.
(Code Civ. Proc., § 473.5, subds. (a)-(c).)
A proof of service containing a declaration from a registered process server invokes a presumption of valid service. (See American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; see also Evid. Code § 647.) This presumption is rebuttable. (See id.) 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.)
Code of Civil Procedure section 415.20, subdivision (c), provides that “if the only address reasonably known” for a person to be served is a private mailbox address, service may be effected on the first delivery attempt by leaving a copy of the Summons and Complaint with the commercial mail receiving agency in accordance with Business and Professions Code section 17538.5. (Italics added.)
In addition, “[a]n individual may be served by substitute service only after a good faith effort at personal service has first been made: the burden is on the plaintiff to show that the summons and complaint ‘cannot with reasonable diligence be personally delivered’ to defendants. [Citations.] Two or three attempts to personally serve a defendant at a proper place ordinarily qualifies as ‘reasonable diligence.’” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389.) (Italics added.) If the summons and complaint cannot be personally delivered with reasonable diligence, then a copy may be served at the person’s “dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box…who shall be informed of the contents thereof and by thereafter mailing a copy of the summons and complaint by first class mail, postage prepaid, to the person to be served…” (Code Civ. Proc., § 415.20, subd. (b).)
Here, Defendant states the action arises out of a breach of an agreement related to the lease of property located at 24827 Railroad Ave., Unit Q, in Santa Clarita (the “Santa Clarita Address”). (Oppo., p. 3:22-24.) However, because Defendant no longer resided at the Santa Clarita Address and because Plaintiff was unaware of Defendant’s new residential address, the process server was provided Defendant’s usual mailing address, the Private Mailbox Address. (Id. at pp. 3:26-4:6.) Personal service was attempted twice at the Private Mailbox Address before serving a copy of the Summons and Complaint on the mailing clerk at the Private Mailbox Address and thereafter mailing copies of the Summons and Complaint. (4/18/19 Proof of Service.)
Plaintiff argues that Defendant had previously provided the Mailbox Address as his usual mailing address. (Oppo., pp. 3:26-4:6) However, he does not provide any evidence, not even a declaration from Plaintiff himself, demonstrating Defendant provided this address as his usual mailing address. Plaintiff also does not explain whether any attempts were made to obtain Defendant’s residential or work address. Indeed, attempts at personal service must be reasonably calculated to provide the defendant with actual notice of the action. (Espindola v. Nunez (1988) 199 Cal.App.3d 1389, 1392.) (Italics added.) Here, Plaintiff has not demonstrated the Private Mailbox Address was the only address reasonably known or was a proper place to attempt personal service.
Thus, Plaintiff is ordered to file and serve supplemental papers addressing these points.
B. Relief from Default Pursuant to CCP § 473.5
Defendant’s Motion is timely under Section 473.5. He argues that he lacked actual notice in time to defend the action because he never received, and was never personally served with, the Summons and Complaint. (Mot., p. 9:3-5; Aleksanian Decl., ¶ 3.) Defendant states he was not aware of any service attempts and took no action to avoid service. (Id.) However, he does not explain whether the Private Mailbox Address was, as Plaintiff argues, his usual mailing address and if it was, why he did not receive actual notice of the action at this address. Indeed, Defendant must demonstrate his lack of actual notice of the action was not the result of his avoidance or inexcusable neglect. (Code Civ. Proc., § 473.5, subd. (b).) In addition, although Defendant discovered the default and default judgment on July 15, 2019, he waited four months before filing this action. Although the Motion is timely, it must still have been brought within a reasonable time. (Code Civ. Proc., § 473.5, subd. (a).)
Thus, the Court will continue the hearing to allow Defendant an opportunity to provide supplemental papers on these points.
Conclusion & Order
For the foregoing reasons, Defendant Samuel Aleksanian’s Motion to Set Aside Default and Default Judgment is CONTINUED TO OCTOBER 27, 2020 at 10:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, the parties must file and serve supplemental papers addressing the deficiencies identified herein. Failure to do so may result in the Motion being placed off calendar or denied.
Moving party is ordered to give notice.