On 02/21/2012 CALIFORNIA BANK TRUST filed an Other lawsuit against OGANES SUDZHYAN. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is GREGORY W. ALARCON. The case status is Disposed - Judgment Entered.
Disposed - Judgment Entered
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
GREGORY W. ALARCON
CALIFORNIA BANK & TRUST
DOES 1 THROUGH 10
ELDER WILLIAM N. JR. ESQ.
2/21/2012: COMPLAINT FOR: 1. CLAIM AND DELIVERY; ETC
2/21/2012: SUMMONS -
2/24/2012: NOTICE OF CASE MANAGEMENT CONFERENCE
4/26/2012: PROOF OF SERVICE SUMMONS -
4/26/2012: REQUEST FOR ENTRY OF DEFAULT -
6/21/2012: NOTICE RE: CONTINUANCE OF HEARING
7/12/2012: Minute Order -
8/22/2012: ORDER RE: DEFAULT JUDGMENT PROVE UP [CCP SECTION 585]
10/29/2012: Minute Order -
11/26/2012: DEFAULT DECLMATION PTJRSTTHNT TO CODE OF CIVIL PROCEDURE SECTION 585 (D)
11/26/2012: DECLARRTION RE: INTEREST
11/26/2012: SUPPLEMENTAL DEFAULT DECLARATION OF WILLIAM N. ELDER JR.
11/26/2012: REQUEST FOR DISMISSAL -
11/26/2012: ORDER RE: DEFAULT JUDGMENT PROVE UP (CCP SECTION 585)
11/26/2012: REQUEST FOR ENTRY OF DEFAULT -
7/22/2013: DECLARATION RE: ACCRUED INTEREST
9/4/2015: RETURN ON ATTACHMENT/EXECUTION
DocketRETURN ON ATTACHMENT/EXECUTIONRead MoreRead Less
DocketMEMO OF COSTS AFTER JUDGEMENT, ACKNOWLEDGEMENT OF CREDIT AND DECLARATION OF ACCRUED INTERESTRead MoreRead Less
DocketDeclaration; Filed by CreditorRead MoreRead Less
DocketDECLARATION RE: ACCRUED INTERESTRead MoreRead Less
DocketWrit issued; Filed by ClerkRead MoreRead Less
DocketDeclaration; Filed by CreditorRead MoreRead Less
DocketAbstract of Judgment - Civil and Small Claims; Filed by CreditorRead MoreRead Less
Docketat 08:30 AM in Department 36; Unknown Event Type - HeldRead MoreRead Less
DocketJUDGMENTRead MoreRead Less
DocketSUPPLEMENTAL DEFAULT DECLARATION OF JOANNE ROBINSONRead MoreRead Less
DocketMinute OrderRead MoreRead Less
DocketProof of Service (not Summons and Complaint); Filed by Plaintiff/PetitionerRead MoreRead Less
DocketREQUEST FOR ENTRY OF DEFAULTRead MoreRead Less
DocketDefault Entered; Filed by Plaintiff/PetitionerRead MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketNotice of Case Management Conference; Filed by ClerkRead MoreRead Less
DocketNOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketCOMPLAINT FOR: 1. CLAIM AND DELIVERY; ETCRead MoreRead Less
DocketComplaint; Filed by California Bank & Trust (Plaintiff)Read MoreRead Less
Case Number: BC479274 Hearing Date: April 22, 2021 Dept: 36
*COUNSEL – YOU CANNOT SUBMIT ON THE TENTATIVE PRIOR TO THE HEARING*
Superior Court of California
County of Los Angeles
CALIFORNIA BANK & TRUST,
OGANES SUDZHYAN, an individual; and DOES 1-10, inclusive,
Case No.: BC479274
Hearing Date: 4/22/2021
[TENTATIVE] RULING RE: Defendant’s Motion to Vacate Default Judgment
The motion is denied.
“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.” (CCP § 473(d).) When there has been no valid service of summons, a default judgment violates due process of law, and is void and can be set aside at any time upon a party’s motion pursuant to CCP § 473(d). (Peralta v. Heights Med. Ctr., Inc. (1988) 485 U.S. 80; Calvert v. Al Binali (2018) 29 Cal.App.5th 954, 960.) “Because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” (Maynard v. Brandon (2005) 36 Cal.4th 364, 372.)
A court’s discretion to vacate the entry of a default judgment under Code of Civil Procedure, section 473, may be exercised only if the moving party establishes a proper ground for relief, by the proper procedure, and within the applicable time limits. (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.)
Set Aside Default – CCP § 473.5
Defendant Oganes Sudzhyan moves for an order pursuant to Code of Civil Procedure, section 473.5, setting aside entry of default and default judgment.
“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.” (CCP § 473.5(a).)
Defendant filed the instant motion on March 23, 2021. Default Judgment was entered against him on November 26, 2012. Accordingly, the motion pursuant to Code of Civil Procedure, section 473.5(a) is untimely as unreasonably exceeding two years after entry of default judgment against him.
Set Aside Default – CCP § 473
Defendant also moves for an order pursuant to Code of Civil Procedure, section 473, setting aside entry of default and default judgment. Defendant alleges that the service of the summons and complaint in this action was improper; that the court did not acquire jurisdiction over Defendant; and that the resulting judgment is void.
“The court may . . . on motion of either party after notice to the other party, set aside any void judgment or order.” (CCP § 473(d).) When there has been no valid service of summons, a default judgment violates due process of law, and is void and can be set aside at any time upon a party’s motion pursuant to CCP § 473(d). (Peralta v. Heights Med. Ctr., Inc. (1988) 485 U.S. 80; Calvert v. Al Binali (2018) 29 Cal.App.5th 954, 960.) “Because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” (Maynard v. Brandon (2005) 36 Cal.4th 364, 372.)
“If the judgment is void on its face, then the six months limit set by section 473 to make other motions to vacate a judgment does not apply.” (National Diversified Services, Inc. v. Bernstein (1985) 168 Cal.App.3d 410, 414.) “A judgment or order is said to be void on its face when the invalidity is apparent upon an inspection of the judgment-roll.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441.) When the defendant does not answer the complaint, the judgment roll includes the proof of service. (Id.)
The filing of a proof of service creates a rebuttable presumption that service was proper. (Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.) However, the presumption arises only if the proof of service complies with the applicable statutory requirements. (Id.)
Defendant has not, however, brought argument in support of how service of the summons and complaint in this action was improper. It appears that Defendant alleges that he did not have actual notice of the action, and that he was never personally served. (See Mot. at p. 3; Sudzhyan Decl. ¶¶ 4-5.) As noted above, the argument regarding a lack of actual notice is untimely pursuant to Code of Civil Procedure, section 473.5. Next, Defendant has not provided grounds to contest personal jurisdiction. No argument has been provided how the service in this action was in fact improper, apart from the Defendant not having been personally served. (See Sudzhyan Decl. ¶ 5.)
A review of the proof of service in this action shows that Defendant was served by Substituted service on Marine Sudzhyan, Mother, co-occupant at the dwelling house or usual place of abode of the party, on March 2, 2012. (Proof of Service, at p. 1.) A declaration of diligence is attached, and the summons was thereafter sent by mail to the same address on March 5, 2012. (Proof of Service, at pp. 2, 3.)
In lieu of personal service, if an individual cannot be personally served despite reasonable diligence, “a summons may be served by leaving a copy of the summons and complaint at the person's dwelling house [or] usual place of abode . . . in the presence of a competent member of the household . . . at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.” (CCP § 415.20(b).) The proof of service fulfills each requirement, and as such, based on the judgment roll service was complete on March 15, 2012, and entry of default on April 26, 2012, was proper.
Based on the foregoing, the moving party has not established a proper ground for relief (Cruz, supra, at 495), and there is no showing on the judgment roll in this action that the service of the summons and complaint was improper, and the judgment is void on its face.
The motion is denied.
Superior Court Judge
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