Case Number: EC057762 Hearing Date: February 14, 2020 Dept: A

LVNV Funding v Babayan

Motion to Set Aside

Calendar:

09

Case No.:

EC057762

Hearing Date:

February 14, 2020

Action Filed:

February 23, 2012

Judgment:

April 30, 2012

MP:

Defendant Eduard Babayan

RP:

Plaintiff LVNV Funding, LLC

ALLEGATIONS:

The instant action arises from $32,916.20 in monies due and owing by Defendant Eduard Babayan (“Defendant”) to Citibank, Plaintiff LVNV Funding, LLC (“Plaintiff”)’s successor in interest.

In Plaintiff’s February 23, 2012, Complaint, it alleges a single cause of action for Open Book Account.

PRESENTATION:

Plaintiff filed a proof of service with the Court on February 29, 2012, indicating that Defendant was personally served with service of the Complaint on February 27, 2012, at 9:53A.M. at 1140 Elm Avenue, Apartment 110, Glendale, California 91201. Thereafter, the Entry of Default occurred on April 30, 2012, and Default Judgment was entered the same day.

The instant motion to set aside the default was filed on January 13, 2020. Opposition was received on February 04, 2020.

RELIEF REQUESTED:

Defendant moves to vacate the April 30, 2012, Default Judgment on the grounds of lack of service.

DISCUSSION:

Standard of Review – Pursuant to Code of Civ. Proc. §473(d), the Court “may, on motion of either party after notice to the other party, set aside any void judgment or order.” When the grounds for the motion to vacate are predicated on the failure to serve a defendant, a defendant may establish their right to relief upon rebutting the facts stated in the proof of service. County of San Diego v. Gorham (2010) 186 Cal. App. 4th 1215, 1224 (The trial court “specifically found Gorham had rebutted the facts stated in the proof of service because the evidence showed he had been incarcerated at the time he was alleged to have been personally served, which rendered the default judgment in this matter void for lack of personal jurisdiction. It also found that a false proof of service, as in this case, constitutes extrinsic fraud.”). However, the evidentiary presumption affecting the validity of the proof of service initially rests with the Plaintiff, upon use of a registered process server. Evid. Code §647.

The sole ground stated for relief is that Defendant was not actually served by Plaintiff, and that service occurred in a location where Defendant “never worked, lived, or accepted mail at.” Motion, 3:7-9. Here, the Proof of Service indicates that service was performed by a registered process server, establishing the initial presumption of the propriety of service to Defendant, thereby requiring Defendant to present evidence against rebut the presumed fact, i.e., the February 29, 2012, Proof of Service.

The evidence provided show non- service is (1) a Declaration by Defendant testifying that he was not served at the address listed on the proof of service; and (2) a Medi-Cal letter addressed to Roza Babayan at the address of 12436 Lemay St., Apt. 2, North Hollywood, CA 91606. Decl. of Babayan, ¶¶3-6; Ex. A.

The Court finds that the evidence proffered by Defendant is insufficient to constitute substantial evidence. The Court further finds that the letter addressed to Roza Babayan is inadequate to establish Defendant’s presence or non-presence at a different address on the day that service was affected.

Accordingly, the motion will be denied.

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RULING: Deny

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendant Eduard Babayan’s Motion to Vacate came on regularly for hearing on February 14, 2020, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION IS DENIED.

DATE: _______________ _______________________________

JUDGE