NATURE OF PROCEEDINGS: Hearing on Debra Clark's Motion to Set Aside/ Vacate

 

Debra Clark's Motion to Set Aside/ Vacate is granted.

 

BACKGROUND

Plaintiff Albert Joseph Alexander (Plaintiff) filed this quiet title action against Debra Clark and Mattie Jones Gill (Defendants).

 

Debra Clark filed a Motion to Set Aside/ Vacate. Plaintiff did not file 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.”).

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….”).

 

ANALYSIS

Plaintiff’s Proof of Service of Summons filed January 9, 2024, states that Clark was served by substituted service on January 5, 2024, at 321 S. Inglewood Ave Apt. B Inglewood, CA 90301.

“Substitute service on an individual is accomplished 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 other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address … , at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left.’” American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389 (quoting Code Civ. Proc., § 415.20, subd. (b)). Substitute service is only proper if it occurs at the correct address. See Ellard v. Conway (2001) 94 Cal.App.4th 540, 545 (noting that defendants’ former address “was not the proper place to serve the [defendants] because they moved.”).

The Proof of Service does not identify anyone with whom the server left the documents. “While section 415.20, subdivision (a) permits substituted service on ‘the person to be served as specified in Section 416.10,’ where the proof of service fails to identify any such person, the proof of service is defective.” Ramos v. Homeward Residential, Inc. (2014) 223 Cal.App.4th 1434, 1441-1442. The burden is on the plaintiff “to show that, notwithstanding the facial defect in service, service nonetheless substantially complied with the requirements of the Code of Civil Procedure.” Id. at p. 1442.

Additionally, the Proof of Service does not include a declaration of diligence. “The burden is upon the plaintiff to show reasonable diligence to effect personal service and each case must be judged upon its own facts.” Evartt v. Superior Court (1979) 89 Cal.App.3d 795, 801.

Finally, the USPS Certified mail tracking number shows that the summons was never delivered.

Plaintiff submitted a second Proof of Service filed 3/9/24, which states that Clark was personally served at 3739 Slauson in Los Angeles on 12/29/23 by an individual who is not a registered process server. Clark attests that she was not served at this address, which is not her home. She further attests that she could not have been at the address because she was at home recuperating from neck surgery on 12/29/23. Plaintiff has not filed any opposition, let alone declaration to contest Clark’s declaration.

Based on the foregoing, the Court finds that service was defective; therefore, the default is void. Accordingly, Clark’s Motion to Set Aside/ Vacate default is granted.

CONCLUSION

Debra Clark's Motion to Set Aside/ Vacate is granted.  The Court will deem Clark’s Verified Answer, which she filed on 1/3/25,  as her operative pleading in this case.