Thursday, July 11, 2019
Court of Appeal:
Says Judge Did Not Abuse Discretion in Crediting Declaration of Company Owner That He Thought a Court Hearing Was to Be a Review of Payroll Records Audit
By a MetNews Staff Writer
The Court of Appeal for this district yesterday rejected the contention of a plaintiff that the trial judge erred in setting aside the default of a company that had been served with a summons and complaint by leaving the papers with the person in charge of the office, crediting the explanation by the owner that he was out of the office caring for an aunt and didn’t know of the lawsuit.
Plaintiff Creditors Adjustment Bureau, Inc., a collection agency, insisted that Los Angeles Superior Court Judge Melvin Sandvig abused his discretion in granting the motion of defendant Citiguard, pursuant to Code of Civil Procedure §473(b) because there was no mistake, inadvertence, or excusable neglect.
Sami Nomair, the owner of Citiguard—which was sued for workers’ compensation insurance back payments—insisted that all that was passed on to him was a proof of service of the summons on Sept. 7, 2017, which specified a hearing date of Jan. 12, 2018. He said in a declaration that he was “rarely in the office from mid-August to mid-September.”
Nomair declared that he showed up at the hearing thinking it was for the purpose of reviewing an audit of his payroll records, and only then learned of the lawsuit.
In her unpublished opinion, Justice Gail Ruderman Feuer of Div. Seven said:
“Creditors contends the trial court abused its discretion because Nomair’s claim he never received the summons and complaint, but instead only received the proof of service of the documents, was not credible. But we defer to the trial court’s factual findings made in the exercise of its discretion under section 473, subdivision (b)….The trial court, in finding the declarations in support of the motion were sufficient to show the default judgment was entered due to mistake, inadvertence, surprise, or excusable neglect, made an implied finding Nomair’s statement he did not receive the summons and complaint or learn of the lawsuit until he showed up in court on January 12, 2018 was credible….
“The trial court’s findings were not ‘beyond the bounds of reason.’ ”
The collection agency argued that it sent multiple documents by U.S. mail to Citiguard, receipt of which is presumed, under Evidence Code §641. Feuer responded:
“While Creditors is correct a letter correctly addressed and properly mailed may be presumed to have been received…, the presumption is rebutted upon testimony denying receipt….Although the trial court did not address in its written ruling the documents Creditors mailed to Citiguard, the trial court impliedly decided the documents were not received after considering Nomair’s testimony and the supporting declarations. We defer to this factual finding.”
The case is Creditors Adjustment Bureau, Inc. v. Citiguard, Inc., B290266.
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