Tentative Rulings

Case Number: BC666494    Hearing Date: November 18, 2019    Dept: 5

Superior Court of California

County of Los Angeles

Department 5

INTRODUCTION

Plaintiff Travis Peters (“Plaintiff”) filed this action against Defendant Yusuf Shekoini (“Defendant”) following a motor vehicle collision. Defendant moves to set aside the default judgment Plaintiff took against Defendant. The motion is granted.

EVIDENCE

The Court sustains Plaintiff’s Objections Numbers 23 through 29. The Court overrules Plaintiff’s other objections to Defendant’s evidence because they go to weight, not admissibility.

DISCUSSION

Defendant seeks an order setting aside the default judgment entered on August 15, 2019. To the extent Defendant seeks relief under Code of Civil Procedure section 473(b), the motion is untimely. Plaintiff took Defendant’s default on April 19, 2018. Defendant did not file this motion until October 18, 2019, Defendant cannot seek relief under Code of Civil Procedure, section 473, subdivision (b). (Code Civ. Proc., § 473, subd. (b); Pulte Homes Corp. v. Williams Mechanical, Inc. (2016) 2 Cal.App.5th 267, 273.) However, Defendant’s motion for relief from default judgment under Code of Civil Procedure sections 473(d) and 473.5(a) is timely.

Under Code of Civil Procedure section 473.5, the Court may vacate a default “[w]hen 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.” (Code Civ. Proc., § 473.5.) The phrase “actual notice” means “genuine knowledge of the party litigant” and does not include imputed notice. (Tunis v. Barrow (1986) 184 Cal.App.3d 1069, 1077.) Defendant relies on his own declaration. In it, Defendant states that he “did not receive any written notices of documents arising out of this case” until after entry of default judgment against him. (Declaration of Yusuf Shekoni, ¶ 4.) Defendant does not, however, include a statement, under oath, that his “lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect.” (Code Civ. Proc., § 473.5, subd. (b); see Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 862.) The Court therefore cannot grant the motion under Code of Civil Procedure section 473.5.

Defendant also moves to vacate default per Code of Civil Procedure section 473(d), which permits the Court to set aside void judgments. The Court may grant relief under Code of Civil Procedure section 473(d) if Defendant did not have “actual or constructive notice” of the proceedings. (Lovato v. Santa Fe Internat. Corp. (1984) 151 Cal.App.3d 549, 553.) Defendant has proffered the declaration of his wife, Mujadit Shekoni (“Mujadit”). Plaintiff purportedly served Defendant via substituted service on Mujadit. Mujadit states that she never received any documents relating to this case. (Declaration of Mujadit Shekoni, ¶ 4.) This evidence is sufficient to establish that Defendant did not have actual or constructive knowledge of this action in time to file an answer.

In opposition, Plaintiff argues that Plaintiff’s service of Defendant is presumptively valid, because Plaintiff served Defendant via a registered process server. A proof of service containing a declaration from a registered process server invokes a presumption of valid service the party seeking to defeat service of process must overcome.  (American Express Centurion Bank v. Zara, 199 Cal.App.4th 383, 390; see also Evid. Code, § 647.)  In light of this presumption, Defendant was “required to produce evidence that he was not served.” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390.) Defendant has done so by advancing his own declaration, as well as a declaration from Mujadit. While Plaintiff argues that Defendant has not disputed the declaration of the process server, both Defendant and Mujadit unequivocally state that they did not receive any documents related to this case. Defendant’s evidence is sufficient to support the motion, especially in light of the fundamental principle that cases should be resolved on the merits.

Plaintiff’s authorities to the contrary are not on point. For example, in Espindola v. Nunez (1988) 199 Cal.App.3d 1389, the party served conceded actual notice of the proceedings. (See Espindola v. Nunez (1988) 199 Cal.App.3d 1389, 1393.) Here, Defendant denies that he had notice of this case. Likewise, the court in Trackman v. Kenney (2010) 187 Cal.App.4th 175 considered whether proof of service of summons was “facially void,” not whether the party served received actual notice of the proceedings. (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 185.) The court in Hearn v. Howard (2009) 177 Cal.App.4th 1193 considered whether service on the defendant via the clerk at a mail store where the defendant rented a post office box was proper. (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1202-1203.) Again, the Court did not consider whether the defendant adequately demonstrated whether she had not received actual notice of the proceedings. Plaintiff has failed to cite authority under which the Court could deny the motion.

CONCLUSION AND ORDER

This motion is granted. Defendant is ordered to provide notice of this order and file proof of service of such.

DATED: November 18, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court