Case Number: BC600684 Hearing Date: April 26, 2019 Dept: 4A

Motion for Relief to Set Aside an Entry of Default and Default Judgment

The court considered the moving papers. No opposition was filed.

BACKGROUND

On November 9, 2015, plaintiff Sargis Simonyan (“Plaintiff”) filed a complaint against defendants Maksym Tokarev, Svetlana Rymar, Best Aid Appliance, and Avalon Appliance Repair, Inc. (“Defendants”) for general negligence and negligent hiring, training, and retention. Plaintiff alleges that on October 17, 2014, while he and defendant Tokarev were at work, Tokarev was talking to Plaintiff in an excited manner, using his hands to tell a story. Tokarev raised his hand and extended it out in such a manner that he negligently and carelessly motioned it toward Plaintiff, and struck Plaintiff in his eye, causing him a ruptured eye globe and corneal lacerations.

On December 6, 2018, the court entered a default judgment against Defendants in favor of Plaintiff.

Trial is set for May 10, 2019

PARTY’S REQUEST

Plaintiff requests this court to set aside its entry of default and default judgment against Defendants. Plaintiff also requests this court to allow Plaintiff to request a new entry of default.

LEGAL STANDARD

California Code of Civil Procedure section 473, subdivision (b) states: “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a . . . judgment, [or a] dismissal . . . taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief . . . shall be made within a reasonable time, in no case exceeding six months, after the . . . judgment, [or a] dismissal . . . . was taken. . . . Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. . . .”

California Code of Civil Procedure section 473, subdivision (d) states: “The court may . . . set aside any void judgment or order.” The court may set aside an entry of default or default judgment that is void due to improper service. (See Ellard v. Conway (2001) 94 Cal.App.4th 540, 544; see also Brown v. Williams (2000) 78 Cal.App.4th 182, 186, n. 4.)

DISCUSSION

Plaintiff’s attorney declares that he mistakenly provided “5854 Wilkerson Ave.” as the address to which the entry of default and default judgment package was to be sent to. (Poghosyan Decl., ¶¶ 4, 7.) Plaintiff’s attorney states that the address should have been listed as “Wilkinson Ave.” (Poghosyan Decl., ¶ 9.) As such, the court has entered default and default judgment against Defendants, but adequate notice has not been provided to the Defendants of the default judgment package prior to it being granted, and thus the judgment is unenforceable and not collectable by Plaintiff. (Motion, p. 2:14-2:17; Poghosyan Decl., ¶¶ 5, 8.)

The court is unable to afford relief to Plaintiff from the entry of default or the default judgment pursuant to California Code of Civil Procedure section 473, subdivision (b), because these actions were not taken against Plaintiff. Moreover, the entry of default occurred on June 7, 2017, and thus relief cannot be afforded from this proceeding due to a lapse in the six month deadline to seek relief pursuant to California Code of Civil Procedure section 473, subdivision (b).

Notwithstanding the unavailability of relief under section 473(b), the default should be set aside under the court’s inherent power, as Plaintiff has shown that the June 7, 2017 entry of default and the February 11, 2019 default judgment are void as a matter of law due to the admitted lack of proper service of the documents on Defendants.

Plaintiff’s motion is GRANTED. The June 7, 2017 entry of default and the February 11, 2019 default judgment are vacated.