Judge: Anne Richardson, Case: BC686165, Date: 2023-04-10 Tentative Ruling

Case Number: BC686165    Hearing Date: April 10, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

On December 8, 2017, Plaintiff Financial Pacific Leasings, Inc. sued Vanessa McKenzie, individually and dba Baldwin Hills Crenshaw Urgent Care, and Does 1-10 pursuant to claims of (1) Breach of Equipment Finance Agreement, (2) Breach of Guarantee, and (3) Account Stated on the grounds that on or about April 25, 2017, Defendant McKenzie individually and doing business as Baldwin Hills Crenshaw Urgent Care entered into a written Equipment Finance Agreement with Partners Capital Group, Inc.—Plaintiff Financial Pacific Leasings, Inc.’s predecessor in interest through assignment—whereby McKenzie and Does 1-5 financed certain equipment, later failing to make payments thereon, leading Partners Capital Group to repossess and sell the equipment, resulting in a deficiency of $29,042.91 and ultimate damages to Plaintiff in the amount of $30,241.14, plus prejudgment interest at the rate of eight percent (8%) per annum from July 1, 2017, until judgment was entered.

On July 12, 2018, Plaintiff secured an entry of default against Defendant McKenzie.

On October 2, 2019, Plaintiff secured Default Judgment against Defendant McKenzie, with Judgment in the amount of $35,157.11.

On September 19, 2022, Defendant McKenzie—appearing in pro per—filed a Motion to Set Aside Default and Default Judgment pursuant to Code of Civil Procedure section 473, subdivision (d).

On March 8, 2022, Defendant McKenzie—appearing in pro per—filed a second Motion to Set Aside/Vacate Default and Default Judgment, this time pursuant to Code of Civil Procedure section 473, subdivisions (b) and (d), and Code of Civil Procedure section 473.5 and (4) Code of Civil Procedure section 418.10, quashing service of summons.

On March 23, 2023, Defendant McKenzie filed a notice of errata to her Motion to Set Aside/Vacate Default and Default Judgment, expanding the grounds for relief to Code of Civil Procedure section 1788.61. While this notice of errata was filed less than 16 court days before the hearing (Code Civ. Proc. 1005(b)), in the interest of justice, the Court will consider this errata so as to have access to all of Defendant’s arguments when ruling on this motion.

On March 30, 2023, Defendant McKenzie filed a Notice of Non-Opposition noting Plaintiff’s failure to oppose the set aside motions.

Plaintiff Financial Pacific Leasings has failed to oppose either motion.  The Proof of Service attached to the complaint sets forth that service was accomplished by mail to the address of the law firm and at the address listed on the Judgment, but without specifying the names of any particular attorneys.

Motion to Set Aside/Vacate Default and Default Judgment

I. Code Civ. Proc., § 473, subd. (b)

Legal Standard

Section 473 subdivision (b) of the Code of Civil Procedure provides for both discretionary and mandatory relief from a judgment, dismissal, and/or order or other proceeding taken against a party through his or her mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., § 473, subd. (b) [mandatory relief more narrowly targeted to defaults, default judgments, and dismissals]; Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.) The discretionary provision of section 473, subdivision (b), states in pertinent part that “[t]he court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect” and that “the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b).)

Analysis

The Court first notes that because even the earliest of Defendant McKenzie’s motions—made on September 19, 2022—was made more than six months after entry of default or default judgment—taking place on July 12, 2018 and October 2, 2018 respectively—relief pursuant to Code of Civil Procedure section 473, subdivision (b) is not available. (Code Civ. Proc., § 473, subd. (b).) While Defendant contends that she made this application within six months of learning about the lawsuit, that is not what the statute provides; it states, six months “after the judgment . . . was taken.” (Code Civ. Proc., § 473, subd. (b).)

However, even if the motion had been timely, the Defendant has not shown mistake, inadvertence, surprise or excusable neglect, where Defendant contends that this is shown by the fact that “no valid proof of service was factually filed,” (March 23, 2023 filing, McKenzie Dec. at ¶9 lines 9-15) and that it is a consumer credit debt, yet no declaration of venue was filed and the complaint is not verified (Id. at ¶9 lines 16-17.)  As seen below, the first argument lacks merit, and the second is not a basis for relief from failure to answer or otherwise respond to the complaint.

II. Code Civ. Proc., § 473.5

Legal Standard

The defendant can directly attack the entry of default or default judgment on the ground that even though service was proper, the defendant did not receive actual notice of the action. (Code Civ. Proc., § 473.5, subd. (a).) However, 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.”  (Id.).

Analysis

            Here, by any calculation, the motion is untimely. The default judgment was entered on October 2, 2018. The first motion to set it aside was not brought until nearly three years later, on September 19, 2022. Even with the 6-month moratorium extending deadlines due to Covid-19, the motion was filed some 5 months late.

            However, even if the motion had been timely, Defendant has not shown that service was improper, as discussed further below.

III. Code Civ. Proc., § 473, subd. (d)

Legal Standard

The defendant can directly attack the entry of default or default judgment by filing a motion to vacate a void judgment. (Code Civ. Proc., § 473, subd. (d); see e.g., Falahati v. Shinji Kondo (2005) 127 Cal.App.4th 823, 829-30.)

A default or default judgment is void if the defendant was not served or was not served in a manner prescribed by statute. (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 387 [description of person served personally did not fit defendant’s description0; Dill v. Berquist Const. Co. (1994) 24 Cal.App.4th 1426, 1444 [not served in manner prescribed by statute].) The filing of a proof of service creates a rebuttable presumption that the service was proper.  (Dill v. Berquist, supra, at p. 1441.)

Analysis

            Although Defendant makes a variety of claims and cites to multiple authorities for various contentions (some of which are irrelevant here, such as extending statutes of limitations), the heart of Defendant’s motion appears to be that the proof of service is invalid and that she was not in fact served.  (March 23, 2023 filing, McKenzie Dec. at ¶¶6–10.)

            The service in question was accomplished by substitute service. (Exhibit I to McKenzie Dec.; see Code of Civil Procedure section 415.20 subd. (b).) The proof of service attacked by Defendant, which was filed April 25, 2018, provided a declaration of reasonable diligence indicating four efforts at service at 4899 E. Shore Dr., Memphis TN 38109, including two on April 16, 2018 and one each on April 18 and 19, 2018. The proof of service included personal service on an individual named Chukwu Emeka-Bakari on April 21, 2018, at the same address, with a physical description and indicating that this was defendant’s son, aged approximately 18-25. The proof of service was signed by Georgette Brooks who indicated she was not a registered California process server, and who provided her registration number for Tennessee, the state in which the service was accomplished.  The proof of service also indicates that the complaint and associated documents were thereafter mailed to Defendant Vanessa McKenzie.  These three steps – reasonable efforts to attempt personal service, followed by service on another adult at the person’s dwelling house, followed by mail service, are appropriate means of substitute service for serving a person with a complaint.  (Code Civil Procedure §§ 415.20(b), 417.10, 417.20.)

            Defendant contends that there is something wrong with service because the process server was not registered in California, but this is not a requirement.  (Code of Civil Procedure section 414.10.) Further, while Defendant contends that she has “always lived in the State California,” she does not provide any details about this important contention, such as where her actual residence is, and she does not explain anything about the address at which service was completed, such as whether she ever provided that address for service. As a result of this lack of detail, it is not persuasive. Moreover, the Complaint that gave rise to this action attached a UCC Financing Statement as part of its Exhibit 1 indicating that the Debtor Vanessa McKenzie’s address was in fact 4899 E. Shore Dr., Memphis TN 38109. Significantly, she does not claim that the individual named in the proof of service did not live there or that he is not her son. In sum, Defendant has not rebutted the presumption of valid proof of service by the factual showing she has made.

IV. Code Civ. Proc., § 418.10

Legal Standard

A defendant, on or before the last day of her time to plead or within any further time that the court for good cause may allow, may move to quash service of summons on the ground of lack of jurisdiction over her. (Code Civ. Proc., § 418.10, subd. (a); see Greener v. Workers’ Comp. Appeals Bd. (1993) 6 Cal.4th 1028, 1036.) For a court to have personal jurisdiction over a defendant, two elements are required: (1) there must be some basis for exercising personal jurisdiction over the defendant, i.e., defendant’s consent, physical presence, domicile, or minimum contacts; and (2) service of summons must be proper. (Ziller Elecs. Lab. GmbH v. Superior Ct. (1988) 206 Cal.App.3d 1222, 1229.)

Analysis

            This code section does not apply to the instant matter, as it was not filed on or before the last day of her time to plead, and the court has not granted additional time. Her last day to have filed a responsive pleading was in 2018. Moreover, even if it were timely, Defendant has not stated any grounds for lack of jurisdiction. (March 23, 2023 Mot. at p. 14.) Assuming her argument reflects her contention that she was not properly served, as she discusses in her declaration and as summarized above, the Court has rejected that argument as detailed above. Thus, there is no basis for the Court to grant a motion to quash under Code of Civil Procedure section 418.10.

  Conclusion

Defendant Vanessa McKenzie’s Motion to Set Aside/Vacate Default and Default Judgment is DENIED.