2012-00128339-CU-CL

Autovest, LLC vs. Mohammad Abboushi

Nature of Proceeding: Motion to Set Aside Default and Default Judgment

Filed By: Abboushi, Ramseyfaiz M.

Defendant Mohammad Manuel Abboushi’s (“Defendant”) motion to set aside default and default judgment is UNOPPOSED and is GRANTED.

Plaintiff Autovest LLC (“Plaintiff”) filed this action on July 18, 2012, alleging breach of contract, open book account, and account stated. The Proof of Service of Summons indicates Defendant was served by substituted service on November 13, 2012, at 10019 Wilton Oaks Court, Elk Grove, California 95624. (ROA 8.) The person served is described as “JANE DOE; FEMALE AMER/INDIAN; 33 YRS; BLACK HAIR; BROWN EYES; 5’05”; 135 LBS; OCCUPANT.” (ROA 8.) Default Judgment was entered against Defendant on January 12, 2017. The proof of service was served by a registered process server.

Defendant now moves to set aside that default judgment on the ground he was not served with the Summons and Complaint (CCP § 473(d)) and upon the ground service of the summons did not result in actual notice to him in time to defend the action (CCP

§ 473.5). “[W]hen a judgment or order is obtained based on a false return of service, the court has the inherent power to set it aside [citation], and a motion brought to do so may be made on such ground even though the statutory period has run” County of San Diego v. Gorham, (2010) 186 Cal. App. 4th 1225, 1229. A party may seek relief where he or she can show “that extrinsic fraud or mistake exists, such as a falsified proof of service, and such a motion may be made at any time, provided the party acts with diligence upon learning of the relevant facts.” (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 181.) Relief is appropriate on this basis.

Defendant declares at the time the substituted service occurred he was residing at 8771 Poppy Ridge Road, Elk Grove, California 95757 and he did not live or work at 10019 Wilton Oaks Court, Elk Grove, California 95627. (Abboushi Decl. ¶¶ 6-7.)

Defendant declares he first learned of this lawsuit on or around November 13, 2018, when he received a phone call from his brother, Ahmad Abboushi, that Defendant had received mail at his residence of 6960 Auburn Folsom Road. (Abboushi Decl. ¶ 8.) The mail was a writ of execution. (Ibid.) Defendant then contacted his family lawyer for assistance. (Ibid.)

Section 473 is to be liberally applied where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. ( Berri v. Rogero (1914) 168 Cal. 736.) In such situations, “very slight evidence will be required to justify a court in setting aside the default.” (Id., at 740.) Because the law strongly favors trial and disposition of cases on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default. (Waite v Southern Pacific Co. (1923) 192 Cal. 467; Maynard v. Brandon (2005) 36 Cal. 4th 364, 371-372.)

Based on the facts and record before it, having received no opposition from Plaintiff [t he Court construes Plaintiff’s failure to oppose the demurrer as a concession on the merits. D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 728, fn. 4 [where nonmoving party fails to oppose a ground for a motion “it is assumed that [nonmoving party] concedes” that ground].], and given that liberality should be applied where a party in default moves promptly to seek relief, the Court grants the motion to set aside the default and default judgment entered against Defendant on January 12, 2017.

The default and default judgment entered against Defendant on January 12, 2017, are set aside.

Defendant need not file the proposed answer attached to his motion given the Summons and Complaint were never properly served and he has no duty to respond to the complaint at this time.

Defendant has indicated the incorrect address in its notice of motion. The correct address for Department 53 of the Sacramento County Superior Court is 813 6th Street, Sacramento, California 95814. Defendant shall notify Plaintiff immediately.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.