Judge: Armen Tamzarian, Case: 21STCV23298, Date: 2023-04-26 Tentative Ruling
Please notify Department 52 via email at smcdept52@lacourt.org and indicate that the parties are submitting on the tentative ruling. Please provide the attorney's name and represented party. Please notify the opposing side via email if submitting on the Court's tentative ruling.
Case Number: 21STCV23298 Hearing Date: April 26, 2023 Dept: 52
Defendant
Stephanie L. Violas’ Motion to Quash Service of Summons and/or to Set Aside
Default and Default Judgment
Defendant Stephanie L. Violas moves to quash service
of summons and to set aside the default and default judgment against her. She argues the court should set aside the
default under three avenues of relief.
(1) CCP § 473(d): Void Judgment
Violas argues the judgment is void because plaintiff
never effected valid service of summons on her.
Courts may “set aside any void judgment or order.” (CCP § 473(d).) Here, the judgment is at most voidable—not
void. “
‘[J]udgments which on their face or on the judgment roll affirmatively disclose
their invalidity’ are void judgments and those which do not show the invalidity
on their face as voidable judgments.” (OC
Interior Services, LLC v. Nationstar Mortgage, LLC (2017) 7 Cal.App.5th
1318, 1332.) “Generally, defendants have
six months from entry of judgment to move to vacate. [Citation.] But, ‘[i]f the judgment is void on its face,
then the six months limit set by section 473 to make other motions to vacate a
judgment does not apply.’ ” (Calvert
v. Al Binali (2018) 29 Cal.App.5th 954, 960.) “ ‘ “A judgment or order is said to be void on
its face when the invalidity is apparent upon an inspection of the
judgment-roll.” ’ ” (Ibid.) “ ‘This does not hinge on evidence: A void
judgment’s invalidity appears on the face of the record.’ ” (Ibid.)
The face of the record shows valid service
of summons on Violas. The proof of
service of summons dated September 22, 2021, states registered process server
Thomas A. Daspit personally served Stephanie L. Violas at 136 Laurent, Newport
Beach, CA 92660 at 3:23 p.m. on August 19, 2021. The proof of service of summons meets all
requirements. Showing any defects requires
resorting to extrinsic evidence, which Violas presents in this motion. She, however, filed this motion over a year
after entry of the default judgment. The
motion is untimely.
Even if the court could set aside the
judgment under section 473(d) based on extrinsic evidence of improper service,
the court finds service of summons was valid.
“[I]n deciding whether service was valid, the
statutory provisions regarding service of process should be liberally construed
to effectuate service and uphold the jurisdiction of the court if actual notice
has been received by the defendant.” (Gibble
v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 313.)
Plaintiff PSP Investment Group, LLC at least
substantially complied with the requirements for personal service. “ ‘Personal service usually contemplates
actual delivery. But the person on whom
service is sought may not, by merely declining to take the document offered,
deny the personal service on the ground of lack of delivery, where under the
circumstances it would be obvious to a reasonable person that a personal
service was being attempted. In such a
case the service may be made by merely depositing the process in some
appropriate place where it would be most likely to come to the attention of the
person being served.’ ” (Crescendo
Corp. v. Shelted, Inc. (1968) 267 Cal.App.2d 209, 212 (Crescendo).)
In her sworn declaration, Violas states, “I am
informed that a proof of service was filed indicating that I was personally
served with the Complaint in the above captioned matter at my home on August
19, 2021. When I returned home on August
19, 2021, my sister informed me that there were documents left at the front
door. I opened the door and found the
documents. I reviewed the security
camera footage from my doorbell camera and saw video of an unknown male leaving
the documents on my doorstep after there was no response at the door.” (Violas Decl., ¶ 3.) Defendant also submitted a video from her
doorbell camera, which shows a man leaving papers in front of the closed
door. (Id., Ex. A.) The court notes the declaration refers to
returning home but does not expressly state she was not home at 3:23 p.m. that
day.
In the opposition, plaintiff submits a declaration
from the process server, Thomas A. Daspit.
He states that as he approached the premise, a woman “meeting the
description of Ms. Violas” arrived in a vehicle “with a large size dog.” (Daspit Decl., ¶ 4.) Daspit testifies, “I stated to the woman that
I was ‘looking for Stephanie at 136,’ and the woman quickly cut me off and said
‘this is not 136, it’s around back.’ I
walked the short distance around the building to realize the woman, who met Ms.
Violas’s description, had purposefully misled me. I walked back around the building to find
that the Defendant had hurriedly ran inside the Premises with her dog” (Id., ¶¶ 5-7.) He rang the doorbell, but no one answered,
and he left the papers outside. (Id.,
¶¶ 8-9.)
The evidence is analogous to the facts in Crescendo. Violas attempted to deny the personal service
by misleading the process server, hurrying away, and refusing to open the
door. It would be obvious to a
reasonable person that Daspit was attempting to personally serve Violas. He then deposited the papers in front of the
door, where it was likely to and did come to Violas’ attention. Plaintiff provides sufficient evidence of
personal service on Violas.
(2) CCP § 473.5: Lack of Actual Notice
Violas
argues she lacked actual notice of this action in time to defend the action. “When service of a summons has not resulted
in actual notice to a party in time to defend the action and a default or
default judgment has been entered against him or her in the action,” the
defendant may move “to set aside the default or default judgment and for leave
to defend the action.” (CCP §
473.5(a).)
Defendant’s
moving papers assert she “did not receive actual notice of this action until
she received the default judgment.”
(Memo, p. 7.) But her own sworn
declaration states, “I am informed that a proof of service was filed indicating
that I was personally served with the Complaint in the above captioned matter
at my home on August 19, 2021. When I
returned home on August 19, 2021, my sister informed me that there were
documents left at the front door. I
opened the door and found the documents.”
(Violas Decl., ¶ 3.) Those documents
included the summons and complaint in this action. (Daspit Decl., ¶ 9; Proof of Personal Service
filed 9/22/21.) Violas therefore had
actual notice of this action on the same day as the disputed service of
summons.
Furthermore, plaintiff’s counsel states, “In or
about September of 2021, attorney Paul H. Violas, representing his daughter and
DTLA called me on my cell phone. He
acknowledged that he was aware that his daughter had been served and that he
had received a copy of the entire summons and complaint package. He informed he would be responding to the
complaint on behalf of both his daughter and DTLA. We then discussed settlement of the case. We were unable to settle the case and I did
not hear back from attorney Violas.”
(Roshan-Zamir Decl., ¶ 7.) Plaintiff’s
counsel also authenticates emails about the case between himself and Paul H
Violas. (Id., Ex. 1.)
Based on the evidence in the record, the court finds
Violas had actual notice of this action in time to defend it. Relief under Code of Civil Procedure section
473.5 is not available.
(3) The Court’s Inherent Authority
Finally,
Violas argues the court should exercise its inherent power to set aside the
judgment due to extrinsic fraud or mistake.
“[A] false proof of service … constitutes extrinsic fraud.” (County of San Diego v. Gorham (2010)
186 Cal.App.4th 1215, 1224.)
Even assuming plaintiff’s proof of service is false,
the court declines to set aside the default or default judgment on this basis. A defendant “seeking equitable relief on the
grounds of extrinsic fraud or mistake must show three elements: (1) a
meritorious defense; (2) a satisfactory excuse for not presenting a defense in
the first place; and (3) diligence in seeking to set aside the default judgment
once discovered.” (Rodriguez v. Cho
(2015) 236 Cal.App.4th 742, 750.) Violas
does not show any of these three elements.
Violas fails to show she has a meritorious
defense. Violas’ memorandum of points
and authorities asserts, “[T]he Declaration of Ms. Violas presents evidence
that [she] has a meritorious defense… that Plaintiff was in breach of the
parties' agreement, Plaintiff failed to mitigate its damages, Plaintiff did not
properly account for the offset of rents it received from re-letting the space
occupied by Ms. Violas and Ms. Violas had satisfied all obligations and
conditions arising from said agreement.”
(Memo, p. 8.)
Violas’ declaration presents no such evidence. The declaration merely identifies her home
address (¶ 2), describes the purportedly defective service of summons (¶ 3),
and states she never received notice of entry of judgment (¶ 4). Violas thus fails to present any evidence of
a meritorious defense. She presents
nothing more than conclusory arguments and an unverified proposed answer. (Erakat Decl., Ex. C.) The proposed answer contains only a general
denial and 28 boilerplate affirmative defenses, which make legal conclusions
with no supporting factual allegations.
Next, Violas gives no satisfactory excuse for not
presenting a defense to this action. She
disputes the validity of summons. That
is not a satisfactory excuse because she could and should have done that by
timely moving to quash service of summons under Code of Civil Procedure section
418.10. Her other excuse—lack of actual
notice—is not satisfactory because, as discussed above, the record persuasively
demonstrates that is not true.
Finally, Violas does not show diligence in seeking
to set aside the default judgment once discovered. Her declaration states she never received
notice of entry of judgment and only learned about the default judgment in
February 2023. (Violas Decl., ¶ 4.) She does not, however, dispute receiving
notice of entry of her default long before that date. The request for entry of default dated
September 22, 2021, and both requests for entry of default judgment dated
January 24 and March 31, 2022, include declarations of mailing to Stephanie L.
Violas at 136 Laurent, Newport Beach, CA 92660.
Violas’ declaration states, “My home address is 136 Laurent, Newport
Beach, California 92660. I have lived at
that address since at least August 2021.”
(Violas Decl., ¶ 2.)
The evidence therefore shows Violas had notice of
the request for entry of her default in September 2021. She did not move for any relief until March
24, 2023. She was not diligent.
Disposition
Defendant Stephanie L. Violas’ motion to quash
service of summons and to set aside default and default judgment is denied.