Case Number: BC594223 Hearing Date: June 04, 2018 Dept: 4

MOVING PARTY: Arutyun Harout Balyan (sued as Harout Balyan)

RESPONDING PARTY: Plaintiff Alma Alcaraz

Motion to Set Aside Default and Default Judgment

The court considered the moving, opposition, and reply papers.

BACKGROUND

On September 10, 2015, plaintiff Alma Alcaraz filed a complaint against defendants Poison Ivey, Inc., dba Poison Ivy, Harout Balyan, Eddie Shimonov, and Serge for premises liability. Plaintiff alleges that on September 13, 2014, plaintiff’s co-employee and employee of defendant caused a florescent light fixture to break and fall from the ceiling, striking plaintiff’s leg, and causing serious personal injuries. Plaintiff further alleges that defendants failed to secure payment of workers’ compensation benefits as required by Labor Code §3700.

On September 18, 2015, plaintiff filed an amendment designating Varouzhan Tatoian as Doe 21.

On January 7, 2016 a default was entered against Varouzhan Tatoian, Harout Balyan, and Poison Ivy, Inc., dba Poison Ivy.

On October 31, 2016, defendant Eduard Shimonov filed a notice of stay of proceedings based on his bankruptcy petition.

On September 29, 2017, a default judgment was entered against defendants Poison Ivy, Inc. dba Poison Ivy, Harout Balyan, Varouzhan Tatoian, and Sergey Pashenko.

LEGAL STANDARD

CCP §473 states that “[t]he court may, upon terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. . . .”

CCP § 473.5(a) permits the court to set aside a default or default judgment “[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.” The phrase “actual notice” means “genuine knowledge of the party litigant” and does not include constructive or imputed notice to the client. Tunis v. Barrow (1986) 184 Cal. App. 3d 1069, 1077.

“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). “A notice of motion to set aside a default or default judgment and for leave to defend the action . . . 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.” CCP § 473.5(b).

CCP § 473.5(c) provides: “[u]pon 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.”

DISCUSSION

Pursuant to CCP §§473(b) and (d) and 473.5, Arutyun Harout Balyan (“A. Balyan”) requests an order setting aside the default and judgment and to quash service of summons and complaint.

CCP §473

The motion is untimely under CCP §473. The default judgment was entered on September 29, 2017 and the motion was filed on April 6, 2018, more than six months after the default judgment was entered. The six month period is measured from when the default was taken and not from a notice of entry of judgment.

CCP 473.5

A. Balyan contends that he did not have actual notice in time to defend the action.

The proof of service filed on October 22, 2015 states that Harout Balyan was substitute served on October 15, 2015, at 11:25 a.m. at 2107 Hyperion Avenue, Los Angeles, via Hakop Balyan (subject’s brother). A. Balyan states in his declaration that he did not live or work at 2107 Hyperion Ave. or receive mail there. Balyan decl., ¶3. A. Balyan states that Hakop Balyan is his brother and did not inform defendant of the lawsuit. Id., ¶4. He states that his current residence is 1543 Talmadge Street and has resided there for over ten years. Id., ¶6. He was informed of the default judgment in December 2017 when he was applying for a credit loan. Id.,

¶9. He states that he was not evading service. Id., ¶10. He also states that he never owned, controlled, maintained, or had any involvement with Poison Ivy, Inc. and does not know plaintiff. Id., ¶12. The declaration is signed “Harout Balyan.”

In opposition, plaintiff contends that Arutyun Harout Balyan is not a defendant in this action and thus he does not have standing. Further, the declaration is misleading because it is signed by Harout Balyan. Plaintiff asserts that the judgment is proper against Harout Balyan. Plaintiff has offered to stipulate that the judgment is not against Arutyun Harout Balyan.

In reply, A. Balyan contends that he is a prominent singer in the Armenian community and goes by the name Harout Balyan. He contends that A. Balyan is the individual whose credit is affected.

The court finds that the motion is timely under CCP §473.5, however, A. Balyan has not provided sufficient evidence that he and Harout Balyan are the same person and that he resided at 1543 Talmadge Street when he was purportedly served.

CCP 473(d)

“Where a party moves under section 473(d) to set aside ‘a judgment that, though valid on its face, is void for lack of proper service, the courts have adopted by analogy the statutory period for relief from a default judgment’ provided by section 473.5, that is, the two-year outer limit. (See Rogers v. Silverman (1989) 216 Cal. App. 3d 1114, 1120-1124; Schenkel v. Resnik (1994) 27 Cal. App. 4th Supp. 1, 3–4; Gibble v. Car-Lene Research, Inc. (1998) 67 Cal. App. 4th 295, 301, fn. 3.).” Trackman v. Kenney (2010) 187 Cal. App. 4th 175, 180.

See above under CCP §473.5.

Request to quash service of summons and complaint

A defendant may serve and file a notice of motion to quash service of summons on the ground of lack of jurisdiction of the court over him or her. CCP § 418.10(a). CCP § 418.10 provides the exclusive procedure for challenging personal jurisdiction at the outset. Roy v.

Superior Court (2005) 127 Cal. App. 4th 337, 342. Although defendant is the moving party, the burden of proof is on plaintiff to defeat the motion by establishing that jurisdictional grounds exist. Mihlon v. Superior Court (1985) 169 Cal. App. 3d 703, 710.

Under Evidence Code § 647, “[t]he return of a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.” Under Evidence Code § 604, “[t]he effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption. Nothing in this section shall be construed to prevent the drawing of any inference that may be appropriate.”

As stated above, A. Balyan has not provided sufficient evidence to show that he was improperly served or that he is the same person as Harout Balyan.

The motion is CONTINUED to June 21, 2018 to allow A. Balyan to submit further evidence in support of his motion by June 14, 2018. Plaintiff may file a response by June 18, 2018 by noon and a conformed copy to be dropped off by 3:00 p.m. in Dept. 4.

The court also sets an OSC re whether plaintiff waives a conflict of interest. Plaintiff has brought to the court’s attention that A. Balyan’s counsel is George G. Mgdesyan, Esq. who appears to have been in an attorney-client relationship with plaintiff as to this same matter before the complaint was filed by plaintiff’s current counsel.

Plaintiff is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: June 4, 2018

_____________________________

Dennis J. Landin

Judge of the Superior Court