NATURE OF PROCEEDINGS: Hearing on Cross-Complainant's Motion to Set Aside/Vacate

 

BACKGROUND

Plaintiff Sandra Will Carradine filed this action against De Witte Mortgage Investors Fund LLC, Peter De Witte, CLE Capital Partners, LLC, and Christopher Powell (Defendants).

Peter De Witte and De Witte Mortgage Investors Fund LLC (Cross-Complainants) filed a Cross-Complaint against 1565 Haslam, LLC, Sandra Will Carradine, LW Asset Management, LLC, and Lee Wong.

 On October 23, 2024, the Court entered a default judgment against Cross-Defendants Lee Wong and LW Asset Management, LLC.

On February 25, 2025, Wong filed a motion to set aside the default and vacate the default judgment. Cross-Complainants filed an Opposition.

 

LEGAL STANDARD

Code of Civil Procedure section 473, subdivision (d) provides in relevant part that a court “may … on motion of either party after notice to the other party, set aside any void judgment or order.” “A judgment is ‘void’ only when the court entering that judgment ‘lack[ed] jurisdiction in a fundamental sense’ due to the ‘entire absence of power to hear or determine the case’ resulting from the ‘absence of authority over the subject matter or the parties.’” People v. The North River Ins. Co. (2020) 48 Cal.App.5th 226, 233 (quoting People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660) (citations omitted) (internal quotation marks omitted). “Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.” AO Alfa-Bank v. Yakovlev (2018) 21 Cal.App.5th 189, (citation omitted) (internal quotation marks omitted). “[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction.... Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.” American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 387 (quoting, Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444) (internal quotations omitted).

A judgment void for improper service must be set aside regardless of the merits of the underlying case or the defendant’s delay in rectifying it. See Peralta v. Heights Med. Ctr., Inc. (1988) 485 US 80, 86-87 (“Where a person has been deprived of property in a manner contrary to the most basic tenets of due process, it is no answer to say that in his particular case due process of law would have led to the same result because he had no adequate defense upon the merits.” [citation omitted] [internal quotation marks omitted]); Los Angeles v. Morgan (1951) 105 Cal.App.2d 726, 731 (“[I]n the absence of service of process upon such a party there is no duty on his part even though he has actual knowledge to take any affirmative action at any time thereafter to preserve his right to challenge the judgment. What is initially void is ever void and life may not be breathed into it by lapse of time.”).

 

ANALYSIS

Wong moves to set aside and vacate the default and default judgment, arguing that the judgment is void because she was never served.

The burden of proof is on the party seeking relief from default to show that service was improper. See Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495 (“Although a trial court has discretion to vacate the entry of a default or subsequent judgment, this discretion may be exercised only after the party seeking relief has shown that there is a proper ground for relief….”). Evidence Code section 647 provides that a registered process server's declaration of service establishes a rebuttable presumption affecting the burden of producing evidence of the facts stated in the declaration. See American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390 (citing Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795). “[I]f a presumption affecting the burden of producing evidence ‘applies to a proposition, the proponent of the proposition need not prove it unless the opposing party produces evidence undermining it, in which case the presumption is disregarded and the trier of fact must decide the question without regard to it.’” Farr v. County of Nevada (2010) 187 Cal.App.4th 669, 680-681 (quoting Pellerin v. Kern County Employees' Retirement Assn. (2006) 145 Cal.App.4th 1099, 1106).

Cross-Complainants submit with their Opposition a proof of service dated March 20, 2022. Opp. at p. 15, Ex. A. The proof of service states that registered process server James Baird personally served Lee Wong on March 11, 2022. Therefore, Cross-Complainants are entitled to a rebuttable presumption that process occurred as stated in the proof of service.

In support of her motion, Wong submits her own declaration, and that of her sister, Pleonpidh Houston, attesting that, from March 5, 2022, to March 12, 2022, they were both out of the country on a cruise. Wong additionally offers as evidence airline tickets, cruise activity logs, and photographs of her trip. Houston Decl. at pp. 5-22. This evidence is sufficient to rebut the presumption of the proof of service’s accuracy. However, the Court notes that the photographs Wong submitted appear to show her in Costa Maya, Mexico, and Belize, but neither location appears on the cruise itinerary. Houston Decl. at pp. 5, 16, 17,18,19, 22. Therefore, absent an explanation, the photographs tend to undermine, rather than support, the cruise confirmation and airline receipts.

Cross-Complainants submit the declaration of James Baird, further attesting that he served Wong at her address on March 11, 2022. Moreover, Baird declares that he subsequently served Wong with other documents on April 6, 2022, April 28, 2023, and June 15, 2023. Finally, Baird identifies Wong as the person he served in one of the photographs she submitted. Opp. at p. 13 ¶ 9, Ex. C; Houston Decl. at p. 17.

Because of the conflicting evidence, the Court grants Cross-Complainants’ request for an evidentiary hearing where the parties may present testimony from Wong, Baird, and any other witnesses with relevant information regarding the service of summons and Wong’s location on March 11, 2022.

 

CONCLUSION

The Court declines to rule on Wong’s motion to set aside default and vacate default judgment pending an opportunity to hear oral testimony regarding the service of process. The Court will set an evidentiary hearing in consultation with counsel at the 3/21/25 hearing.