KOSNETT LAW FIRM, A SOLE PROPRIETORSHIP VS ARMAN MAJIDI

Tentative Rulings

Case Number: 19STLC04723    Hearing Date: January 08, 2020    Dept: 94

Judgment Debtor Arman Majidi’s Motion to Set Aside Default and Default Judgment is DENIED.

I. Background

On May 15, 2019, Plaintiff Kosnett Law Firm (“Judgment Creditor”) filed an action against Arman Majidi (“Judgment Debtor”) for breach of contract and common counts. On August 7, 2019, default was entered against Judgment Debtor. On September 5, 2019, a default judgment was entered against Judgment Debtor in the amount of $8,708.39.

On October 31, 2019, Judgment Debtor filed the instant Motion to Set Aside Default and Default Judgment (the “Motion”). On December 20, 2019, Judgment Creditor filed an Opposition brief. To date, no reply brief has been filed.

II. Legal Standard & Discussion

A. Service

Code of Civil Procedure section 1005 requires that all moving and supporting papers for a motion be served and filed at least 16 court days before the hearing on that motion. (Code Civ. Proc., § 1005, subd. (b).) “The moving and supporting documents served shall be a copy of the papers filed or to be filed with the court.” (Id.) (Italics added.)

Here, Judgment Debtor filed his Motion and Proof of Service on October 31, 2019. His Notice of Motion and Motion are dated October 31, 2019. (Mot., pp. 2, 4.) Judgment Creditor filed three filed proofs of service, which appear to all be the same, stating he served the Notice of Motion and Motion by mail on October 22, 2019. (10/22/19 Proof of Service, ¶¶ 4, 6.) Because the proofs of service are all dated before the moving and supporting papers were signed and dated, whatever papers Judgment Debtor served cannot be the same papers filed with the Court. Thus, Judgment Debtor has failed to satisfy the procedural requirements of Code of Civil Procedure section 1005.

Furthermore, service by mail requires a declaration by the person effectuating service stating the declarant’s residence or business address, that the declarant is over the age of 18 and not a party to the action, the name and address of the person served, that the envelope was sealed and deposited in the mail with prepaid postage, and the date and place of deposit in the mail. (Code Civ. Proc., § 1013a.) (Italics added.) Here, Judgment Debtor himself signed all three proofs of service for this Motion. Because Judgment Debtor is a party to the action, he has not satisfied the requirements of Code of Civil Procedure, section 1013a.

However, “[i]t is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion. [Citations.]” (Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 7.) Because Judgment Creditor submitted an opposition to the Motion, it has waived any challenges to the deficiencies in the notice.

A. CCP § 473(d)

Code of Civil Procedure section 473, subsection (d) provides “[t]he court may…on motion of either party after notice to the other party, set aside any void judgment or order.” Generally, a motion to set aside a void default judgment can be filed at any time. (OC Interior Services, LLC. v. Nationstar Mtg. (2017) 7 Cal.App.5th 1318, 1327.) However, if the grounds for the motion being void is lack of proper service, the time limitations set forth in Code of Civil Procedure section 473.5 apply by analogy. (Cal. Judges Benchbook: Civil Proceedings After Trial, § 1.82.) Code of Civil Procedure section 473.5 requires these motions to be filed the earlier of 180 after notice of entry of default or two years from the entry of default judgement.

Judgment Debtor timely brings this motion. He argues that the judgment and/or default is void under this code section because he does not reside nor work in Los Angeles County, and thus the Court lacks jurisdiction over this matter. (Mot., p. 3.) Judgment Debtor fails to provide any evidence as to why the Court lacks jurisdiction over this matter. Indeed, the parties entered into a contract in Los Angeles to be performed with the county of Los Angeles, and thus this Court does have jurisdiction over Judgment Debtor. (See International Shoe Co. v. State of Wash., Office of Unemployment Compensation and Placement, et al. (1945) 326 U.S. 310, 316; Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 475; Code Civ. Proc., § 410.10.)

The Court also notes that venue is proper in Los Angeles under Code of Civil Procedure 395, subdivision (a).)

Judgment Debtor also alleges he was “surprised to find a default judgment was entered against [him] without providing [him] an opportunity to respond.” However, Judgment Creditor admits he was aware of a November 12, 2020 “hearing” date, (which was the trial date). (Majidi Decl., p. 4.) “[T]he trial court does not have the legal power to set aside the default simply because the defendant did not realize the legal effect of failing to file an answer. [Citation.]” (Yarbrough v. Yarbrough (1956) 144 Cal.App.2d 610, 615.) Because Judgment Debtor knew of the pendency of action against him, he cannot argue he did not know he was under an obligation to take action.

Thus, Judgment Debtor is not entitled to relief under Code of Civil Procedure 473, subsection (d) on the basis of surprise or mistake.

B. CCP § 473.5

Code of Civil Procedure section 473.5 provides:

(Code Civ. Proc., § 473.5, subd. (a).)

Here, Judgment Debtor argues that he does not have a permanent address where he lives and can receive mail and as a result, service of summons did not result in actual notice. (Mot., p. 3.)

Judgment Creditor filed a proof of service on July 2, 2019 demonstrating Judgment Debtor was served by substituted service on June 23, 2019. (7/2/2019 Proof of Service.) The proof of service also included a declaration from a private investigator who determined Judgment Debtor resided at 18631 Redwood St., Fountain Valley, CA 92708. (Id., Frost Decl., ¶ 3.) A declaration of service by a registered process server is entitled to a presumption that any facts set forth in the declaration are true. (Cal. Evid. Code § 647; Rodriguez v. Cho (2015) 236 Ca.4th 742, 750.) Judgment Creditor bears the burden on this issue. However, he has not provided any evidence to overcome the presumption that he was served by substituted service and thus has not carried his burden.

A. CCP 1788.61

Judgment Debtor cites to Code of Civil Procedure section 1788.61, arguing that “service of summons did not result in actual notice in time to defend action brought by a debt buyer.” (Mot., p. 4.)  The Court notes that Judgment Debtor has not provided any evidence that Judgment Creditor is a debt collection buyer, which is required for Civil Code section 1788.61 to apply.

B. Other Arguments

Judgment Debtor argues Judgment Creditor cannot prove the amount he owes the amount indicated or that he signed and accepted the mediation services in question. (Majidi Decl., p. 4.) He also argues that Judgment Creditor did not afford him an opportunity to request arbitration as mandated by the attorney-client contract. (Majidi Decl., p. 4.) However, these arguments do not provide a basis to vacate default and default judgment under the appropriate statute.

IV. Conclusion & Order

For the foregoing reasons, Judgment Debtor Arman Majidi’s Motion to Set Aside Default and Default Judgment is DENIED.

Moving party is ordered to give notice. 

Parties who intend to submit on this tentative must send an email to the Court at SMCdept94@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.