Judge: Anne Hwang, Case: 21STCV11653, Date: 2024-05-14 Tentative Ruling

Case Number: 21STCV11653    Hearing Date: May 14, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

On March 25, 2021, Plaintiff Pantea E. Amini (“Plaintiff”) filed a complaint against Defendants Fernando Gutierrez Jr., Fernando E. Gutierrez, and Does 1 to 100 for negligence surrounding a motor vehicle accident.

On September 28, 2021, Plaintiff filed a proof of service of the complaint, summons, and statement of damages on Defendant Fernando Gutierrez Jr. (“Defendant”) showing he was personally served on August 3, 2021.

On October 18, 2021, default was entered against Defendant.

On November 16, 2022, the Court granted default judgment against Defendant for $586,161.10 in damages and $574.10 in costs.

Defendant now moves to set aside the default and default judgment under Code of Civil Procedure sections 473 and 473.5, arguing he was not properly served the summons and complaint.[1] Plaintiff opposes and Defendant replies.

LEGAL STANDARD

“Generally, a party who has not actually been served with summons has three avenues of relief from a default judgment.” (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180.) First, they may move under Code of Civil Procedure sections 473.5 (applied where service was proper but did not result in actual notice) or section 473(d) (judgment is valid on its face but void due to improper service). (Id.) Second, the party may seek equitable relief showing “that extrinsic fraud or mistake exists, such as a falsified proof of service, and such a motion may be made at any time, provided the party acts with diligence upon learning of the relevant facts.” (Id. at 181.) These first two methods “generally hinge on evidence about the method of purported service.” (Id.) Lastly, the party may move under section 473(d) that the default judgment is facially void. (Id.)

Turning to the first method, Code of Civil Procedure section 473(d) states “[t]he court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment 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.” 

A motion to vacate a default and set aside a judgment under section 473(d) is the proper procedure to attack a default supported by evidence of service of process, but which is challenged for lack of personal jurisdiction. (Strathvale Holdings v. E.B.H.¿(2005) 126 Cal.App.4th 1241, 1249.) “[U]nder 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.’ [Citation.]” (Kremerman v. White (2021) 71 Cal.App.5th 358, 371.)

“Where a party moves under section 473, subdivision (d) to set aside ‘a judgment that, though valid on its face, is void for lack of proper service, the courts have adopted by analogy the statutory period for relief from a default judgment’ provided by section 473.5, that is, the two-year outer limit.” (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180.)

“ ‘When a defendant challenges the court's personal jurisdiction, the plaintiff has the initial burden of “demonstrating facts justifying the exercise of jurisdiction.’ [citation.] When there is conflicting evidence, the trial court's factual determinations are not disturbed on appeal if supported by substantial evidence. [citation.]’” (Strathvale Holdings, supra, 126 Cal.App.4th at 1250.) “[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.]”¿(Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) “[T]he filing of a proof of service creates a rebuttable presumption that the service was proper” but only if it “complies with the statutory requirements regarding such proofs.”¿(Id. at 1441-42.)

Even when the showing under section 473 is not strong, when there is doubt about setting aside a default, such doubt should be resolved in favor of relief. (Rosenthal v. Garner (1983) 142 Cal.App.3d 891, 898.)

EVIDENTIARY OBJECTIONS

The Court overrules Plaintiff’s objection to Defendant’s declaration, paragraph 4 and exhibits I to J.

DISCUSSION

As an initial matter, here, the proof of service of the summons and complaint on Defendant shows he was served personally on August 3, 2021 at 8355 De Garmo Avenue, Sun Valley, California. (Proof of Service, filed 9/28/21.) Therefore, there is no indication that the default is facially void. Also, Defendant does not appear to move for equitable relief. Instead, the main vehicle for this motion is section 473(d), arguing the default is void for improper service. Two years after the default judgment was granted is November 16, 2024. (See Trackman, supra, 187 Cal.App.4th at 180.) Since this motion was filed on March 14, 2024, it is timely. Though Plaintiff argues Defendant did not act diligently in bringing this motion, the cases she relies upon either discuss equitable relief or section 473(b) which specifically states the motion must be made “within a reasonable time.” (See Code Civ. Proc. § 473(b); Stafford v. Mach (1998) 64 Cal.App.4th 1174.) Plaintiff fails to show a similar requirement under section 473(d).

Defendant sets forth the following evidence in support of this motion. Defendant declares under penalty of perjury that he was never personally served the summons and complaint in this action. (Gutierrez Decl. ¶ 2.) He declares that he moved away from 8355 De Garmo Avenue, Sun Valley in October 2018 and has not lived there since. (Id. ¶ 3.) He also states he was not present at that address on August 3, 2021 when the purported service took place. (Id.) As further proof, Defendant attaches copies of a Los Angeles Department of Water & Power (“LADWP”) bill for his residence from June 30, 2021 to August 30, 2021. (Id. ¶ 4, Exh. I.)  He also proffers Spectrum bills for his residence from June 26, 2021 to September 25, 2021. (Id., Exh. J.) The bills (which are partially redacted) correspond to an address on Chase Street in Northridge. The LADWP bill is addressed to “Fernando Gutierrez” and the Spectrum bill is addressed to “Fernando Gutirrez.”  

Defendant also declares that on September 5, 2023, he received a letter from the California Department of Motor Vehicles (“DMV”) stating that his driver’s license was suspended due to a lawsuit filed against him. (Id. ¶ 7.) He declares he was unaware of the lawsuit and informed his insurer, State Farm Mutual Automobile Insurance Company, of this information. He also declares: “I have never attempted to evade service in this matter. Although I have not been properly served in this action, I will file an answer to the complaint if the default and default judgment entered against me are set aside in order to defend against plaintiff’s claims.” (Id. ¶ 8.)

Defendant’s counsel declares that he was retained by State Farm to represent Defendant in this action and received the file for this case on February 22, 2024. (Young Decl. ¶ 4.)

In opposition, Plaintiff’s counsel declares that he was originally retained to represent Plaintiff in an uninsured claim against her insurer, Geico, for the underlying accident. (Mirabel Decl. ¶ 2.) Geico later informed Plaintiff that it identified Defendant as the hit and run driver and that he was insured by State Farm Insurance. Once State Farm denied Plaintiff’s claim, Plaintiff obtained co-Defendant Fernando E. Gutierrez (purportedly Defendant’s father’s) address from the DMV. (Id. ¶ 6, Exh. 2.) Geico informed Plaintiff that Defendant’s address was the same as Fernando E. Gutierrez’s. (Id. ¶ 7.)

Later, once default judgment was granted, and judgment remained unsatisfied, Plaintiff successfully requested that Defendant’s driver’s license be suspended. (Id. ¶ 12.) On September 4, 2023, Plaintiff received a notice of suspension of Defendant’s driver’s license which contained a different address for Defendant. Plaintiff then mailed a letter to Defendant using the Northridge address. (Id. ¶ 13, Exh. 6.) Plaintiff’s counsel contends that none of the letters sent to the original address were ever returned as non-deliverable.

Based on this information, the Court finds Defendant has rebutted the presumption of proper service through his declaration that he moved from the Sun Valley address in October 2018 and was not present at that location when service was purportedly executed. However, Defendant provides no evidence disputing that his father resides at the Sun Valley address or additional evidence regarding the possibility that he was at the location on August 3, 2021. On the other hand, Plaintiff does not provide proof that she discovered Defendant’s address through a DMV search, but rather relied on representations from Geico. Plaintiff provides no declaration from Geico attesting to this, or explaining how it discovered Defendant’s address. Therefore, in light of these gaps, and considering that Defendant informed his insurer when he purportedly first learned of the default and lawsuit in September 2023, and resolving all doubts in favor of relief, the motion is granted.

CONCLUSION AND ORDER

Therefore, the Court GRANTS Defendant’s Motion to Set Aside the Default and default judgment.

Defendant shall file and serve his proposed answer within 10 days.

Defendant to provide notice and file a proof of service of such.