Judge: Anne Hwang, Case: 21STCV15179, Date: 2024-02-27 Tentative Ruling

Case Number: 21STCV15179    Hearing Date: February 27, 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 April 22, 2021, Plaintiff Torrence Leonard Mack (“Plaintiff)” filed a complaint against Defendants DTG Operations, Inc. and Does 1 to 50 for injuries related to an alleged motor vehicle accident. On April 19, 2023, Plaintiff filed an amendment to the complaint, adding Defendant Derita Foster (“Defendant”) as Doe 4.

On October 2, 2023, Plaintiff filed a proof of service of the complaint and summons on Defendant by substitute service on September 23, 2023.

On November 20, 2023, default was entered against Defendant.

On January 30, 2024, Defendant, making a special appearance, filed the instant motion to set aside entry of default and quash service of the summons and complaint. No opposition has been filed.

ANALYSIS

Set Aside Default

¿ “‘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 two 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.)

As an initial matter, this motion is timely since it was filed within two years after entry of default. Plaintiff has not filed a proof of service of the entry of default on Defendant.

Here, Defendant declares that she does not reside at the address where the substitute service took place. (Foster Decl. ¶ 2.) She was not served documents regarding this case on or after September 23, 2023. (Id. ¶ 3.) She also does not know the “Jane Doe”, described as a 60-year-old Hispanic female, who purportedly received the substitute service at this address. 

Therefore, based on the declaration that she does not reside at the address where substitute service took place, it appears Defendant’s lack of actual notice was not caused by avoidance or inexcusable neglect. Based on the above, the motion to set aside the entry of default against Defendant 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 Cal.App.4th 1154, 1160.) A court may rely upon the verified declarations of the parties and other competent witnesses. (Buchanan v. Soto (2015) 241 Cal.App.4th 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.)

“If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served 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 other than a United States Postal Service post office box, 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.” (Code Civ. Proc. § 415.20(b).)  

Defendant moves to quash service on the grounds that service was defective. Defendant challenges the service for the reasons stated above: that she did not reside at the location where the summons and complaint was served. Defendant offers a declaration, under penalty of perjury, as proof. Because Defendant challenges 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 his burden to show service on Defendant was effective. Therefore, Defendant’s motion is granted.

CONCLUSION AND ORDER

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

The matter is set for an Order to Show Cause Re: Dismissal or Monetary Sanctions for Failure to Serve/ Trial Setting Conference for April 15, 2024 at 8:30 a.m. in Department 32 of the Spring Street Courthouse.

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