Judge: Anne Hwang, Case: 21STCV12595, Date: 2023-11-22 Tentative Ruling

Case Number: 21STCV12595    Hearing Date: November 22, 2023    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 April 2, 2021, Plaintiff Claudia Hernandez (Plaintiff) filed a complaint against Defendants Pablo Hernandez Cruz, Rosa Ramirez, and Does 1 to 50 for injuries related to an alleged motor vehicle accident. On June 16, 2023, Plaintiff filed a proof of service of the complaint and summons on Defendants Pablo Hernandez Cruz and Rosa Ramirez (Defendants) by substitute service.

On August 24, 2023, default was entered against Defendants. On October 3, 2023, Plaintiff requested default judgment against Defendants. The Court has not granted defaulted judgment yet.

On October 4, 2023, Defendants, making a special appearance, filed the instant motions to set aside entry of default and quash service of the summons and complaint. No opposition has been filed.

ANALYSIS

Set Aside Default

The California Supreme Court has held that “failure to have served the summons and complaint is a defense to an action on a judgment.”¿ (Ibid. at 202, referring to Hill v. City Cab etc. Co. (1889) 79 Cal. 188, 190-191.)¿ “‘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, 202.)¿ “To establish personal jurisdiction, compliance with statutory procedures for service of process is essential.”¿ (Kremerman v. White (2021) 71¿Cal.App.5th 358, 371.)¿ Defendant’s knowledge of the action does not dispense with statutory requirements for service of summons.¿ (Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466.)¿

Courts may set aside default or default judgment pursuant to Code of Civil Procedure, section¿473.5 for lack of actual notice.¿“The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.”¿ (Code of Civ. Proc., section 473.5.)¿ Furthermore, the notice must be “accompanied by an affidavit showing under oath that the party’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.”¿

The defendant making a motion to set aside default under Code Civ. Proc., section 473.5 must show that he acted with diligence upon learning of default judgment and that the lack of notice was not caused by inexcusable neglect or an avoidance of service. (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180; Anastos v Lee (2004) 118 CA4th 1314, 1319.) For example, a defendant who had actual notice of an action 2 weeks before an answer was due, knew their answer was due, and refused to answer had actual notice in time to defend the action. (Ellard v Conway (2001) 94 CA4th 540, 547–548, 114 CR2d 399.)

Here, Defendants assert they never received actual notice of the summons and complaint. The Proof of Services filed on June 16, 2023, state that the summons and complaint were served via substitute service on a “John Doe” occupant at 1626 W. 65^th Street Los Angeles, California 90047 on June 15, 2023. Defendants both declare that they were never served the complaint and do not reside at the address stated on the proof of service. (Cruz Decl. ¶ 3, 4; Ramirez Decl. ¶ 3, 4.) Instead, they declare that they have resided at 2050 Santa Ana Blvd. N Los Angeles 90059 since May 2019. (Cruz Decl. ¶ 4; Ramirez Decl. ¶ 4.) As a result, the declarations show that Defendants’ lack of actual notice was not caused by their avoidance of service or inexcusable neglect. Additionally, the motion is timely since default was entered on August 24, 2023. Therefore, the 180-day deadline has not passed. Additionally, Defendants have shown they acted with diligence, arguing that their current counsel was assigned to this case in August 2023. On August 31, 2023, and October 3, 2023, after contacting Defendants, their counsel informed Plaintiff that they were never served and thus, entry of default should be set aside. (Coyle Decl. ¶ 3.) Based on the above, the motion to set aside the entry of default against Defendants is granted.

Quash Service of Summons

“A defendant . . . may serve and file a notice of motion for one or more of the following purposes:¿ (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her. . . .”¿(Code Civ. Proc., § 418.10(a).)¿The motion must be filed on or before the last day on which the defendant must plead or within any further time that the court may for good cause allow. (Id.)

A motion to set aside default under Code Civ. Proc., section 473.5 is not a general appearance when filed concurrently with a motion to quash service of summons under Code of Civil Procedure section 418.10. (Code Civ. Proc., section 418.10, subd. (d).)

“[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 1441-1442.) ¿On a motion to quash service of summons, the plaintiff has the burden of establishing by a preponderance of the evidence the prima facie facts entitling the court to assume jurisdiction, including whether service was in compliance with statutory requirements. (Lebel v Mai (2012) 210 CA4th 1154, 1160.) A court may rely upon the verified declarations of the parties and other competent witnesses. (Buchanan v. Soto (2015) 241 CA4th 1353, 1362.) “A court lacks jurisdiction over a party if there has not been proper service of process.”¿(Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.)          

Defendants move to quash service on the grounds that service was defective. Defendants challenge the service for the reasons stated above: that they do not reside at the location where the summons and complaint was served. Defendants offer declarations, under penalty of perjury, as proof. Because Defendants challenge the validity of service, Plaintiff has the burden of proving the facts showing service was effective. Plaintiff fails to oppose this motion and thus fails to meet her burden to show service on Defendants was effective. Therefore, Defendants’ motion is granted.

CONCLUSION AND ORDER

Therefore, the Court GRANTS Defendants motions to set aside entry of default and to quash service of summons and complaint.

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