Case Number: BC716861 Hearing Date: January 17, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEFENDANTS’ MOTION TO SET ASIDE DEFAULT; GRANTED

BACKGROUND

On August 3, 2018, Plaintiff Gustavo Mora (“Plaintiff”) filed this action against Defendants Sarine Haboian (“Haboian”), Lucy Narkazian (“Narkazian”), and Vart Ani Soghomonian (“Soghomonian”) (collectively, “Defendants”) for motor vehicle negligence relating to a June 21, 2017 automobile accident. All three defendants were purportedly served on August 13, 2018. On September 10, 2018, Plaintiff filed proofs of service showing substitute service on Narkazian and Soghomonian by serving Haboian, described as 25 years old, 120 pounds, 5’4”, middle eastern female and personal service on Haboian at 5050 N. Lyman Ave. in Covina, California. Default was entered against Soghomonian on September 26, 2018. Default was entered against Haboian on December 3, 2018. Default was not entered against Narkazian. Each Defendant seeks to set aside default on grounds they were never properly served with the summons and complaint (Code Civ. Proc., § 473, subd. (d)), or alternatively, that service did not result in actual notice (Code Civ. Proc., § 473.5, subd. (a)).

II. LEGAL STANDARDS AND DISCUSSION

A. No Actual Notice

Where a service of summons is proper, but has not resulted in actual notice to a party in time to defend the action, the party may move the court to set aside default and default judgment. (Code Civ. Proc., § 473.5, subd. (a).) The motion must be made no later than two years after entry of default or 180 days after service of a written notice that default or default judgment has been entered. (Ibid.) The party must act with diligence upon learning of the judgment. (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180; Code Civ. Proc., §473.5, subd. (a).) The party seeking to set aside must also submit a declaration that lack of actual notice was not caused by his or her avoidance of service or inexcusable neglect and a copy of the proposed answer, motion, or other pleading proposed to be filed in the action. (Code Civ. Proc., § 473.5, subd. (b).) Upon a finding by the court that the defendant’s lack of actual notice prevented him or her from defending the action, “it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.” (Code Civ. Proc. § 473.5, subd. (d); Goya v. P.E.R.U. Enterprises (1978) 87 Cal.App.3d 886, 893.)

The Court notes that Defendants’ declarations do not meet the requirements of Section 473.5—they do not state that lack of actual notice was not caused by their avoidance of service or inexcusable neglect and they do not attach a copy of their proposed Answers. Accordingly, the Court cannot grant relief to Defendants under Section 473.5 on grounds service did not result in actual notice of the action in time to defend.

B. Void for Improper Service

“The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgments or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc., § 473, subd. (d).) “ ‘A default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.’ Under section 473, subdivision (d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service.” (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1200, citations omitted; Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.) However, the party must act with diligence upon learning of the action. Relief on this basis does not hinge on extrinsic evidence; a void judgment’s invalidity appears on the face of the record, including the proof of service. (Trackman, supra, 187 Cal.App.4th at p. 180.)

The moving party need not make any evidentiary showing, so long as the defect is apparent in the proof of service. (See, e.g., Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441 [where the summons was addressed solely to the corporation rather than the requisite persons to be served, service was invalid on its face]; Ramos v. Homeward Residential Inc. (2014) 223 Cal.App.4th 1434 [service was invalid where proof of service identified only an address and not a person]; Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 47 [where the complaint, proof of service, and original default judgment named Pamela Black as defendant, the amended default judgment against Paula Black was void on its face and able to be set aside].)

Personal service may be accomplished by personally delivering a copy of the summons and complaint to the person to be served. (Code Civ. Proc., § 415.10.) If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person being served, substitute service may be effected by leaving a copy of the summons and complaint at the person’s “dwelling house, usual place of abode, usual place of business, or usual mailing address . . . in the presence of . . . a person apparently in charge . . . and by thereafter mailing a copy of the summons and complaint by first-class mail . . . to the person to be served at the place where a copy of the summons and complaint were left.” (Code Civ. Proc., § 415.20, subd. (b).)

1. Lucy Narkazian

Service on Narkazian appears to be improper. Narkazian declares that she has lived at 5046 N. Lyman Avenue for 28 years. (Declaration of Lucy Narkazian, ¶ 2.) Therefore, substitute service on Haboian at 5050 N. Lyman Avenue was improper, as this was not Narkazian’s dwelling house, usual place of abode, usual place of business, or usual mailing address. The Court lacks jurisdiction over Narkazian. However, the Court notes default was never entered against Narkazian. Therefore, there is no default or void judgment to set aside.

2. Sarine Haboian

Haboian was purportedly personally served with the summons and complaint. However, the proof of service describes her as a 25 year old female with black hair. Haboian is 53 years old and declares she was never personally served with the summons and complaint in this action. (Declaration of Sarine Haboian, ¶¶ 2, 3, 5.) In American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, the registered process server declared he personally served defendant and described him as “Asian with black hair, a description that [did] not fit defendant,” who declared he was not Asian and did not have black hair. (Id. at pp. 388, 390.) The court found the proof of service was therefore untruthful or, alternatively, that service was not made on someone authorized to accept service on defendant’s behalf. (Id. at p. 390.) Similarly, here, the Court finds the proof of service, and the default obtained based on that service, void as Haboian does not fit the description of the person personally served with the summons and complaint.

3. Vart Ani Soghomonian

For the same reason, the proof of service showing substitute service on Soghomonian is void on its face. Because the person described in the proof of service does not match Haboian, Soghomonian’s mother, it cannot be determined that substitute service was made on a person apparently in charge or authorized to accept service on Soghomonian’s behalf.

Plaintiff filed no opposition to these Motions and has not disputed Defendants’ evidence that service was improper and that the defaults are therefore void and set aside.

III. CONCLUSION

In light of the foregoing, the Motions to set aside default as to Haboian and Soghomonian are GRANTED.

Moving party to give notice.