Judge: Armen Tamzarian, Case: 22STCV02885, Date: 2023-01-09 Tentative Ruling

Case Number: 22STCV02885    Hearing Date: January 9, 2023    Dept: 52

Defendant Daniel Shawn Elder’s Motion to Set Aside Entry of Default

            Defendant Daniel Shawn Elder moves to set aside entry of default against him. 

The court must set aside the default because Elder shows that plaintiff Amermex International, LLC did not effect valid service of summons upon him.  “ ‘A summons is the process by which a court acquires personal jurisdiction over a defendant in a civil action’ [citation], and a defendant has an absolute right to demand that process be issued against him in a manner prescribed by law.”  (Mannesmann DeMag, Ltd. v. Superior Court (1985) 172 Cal.App.3d 1118, 1122.)

Plaintiff’s proof of service of summons asserts a registered process server personally served Elder at 1514 Baxter Street, Los Angeles, CA 90026 on April 4, 2022, at 7:15 p.m.  Elder, however, presents overwhelming evidence he was not there on that day.  In his sworn declaration, he states he was in Oregon at the time.  (Elder Decl., ¶¶ 3, 5.)  He authenticates flight records, a rental car reservation, and hotel reservations showing he was in Oregon from April 1 to 11.  (Elder Decl., ¶¶ 5-8, Exs. G-I.)  He also authenticates photographs taken of him and by him in Oregon, including screenshots of his iPhone’s metadata showing where and when they were taken.  (Elder Decl., ¶¶ 5, 9, Exs. J & K.) 

Defendant was in Oregon on April 4, 2022.  He was not personally served on that day.

Plaintiff argues that, even if the someone else was served at Elder’s residence on April 4, 2022, that constituted valid substituted service.  Substituted service, however, requires not just leaving a copy of the summons and complaint with someone at the defendant’s residence.  Afterward, plaintiff must “mail[] a copy of the summons and of the complaint … to the person to be served at the place where a copy of the summons and complaint were left.  Service of a summons in this manner is deemed complete on the 10th day after the mailing.”  (CCP § 415.20(b).)  Plaintiff has not filed any proof of mailing the summons and complaint after leaving the documents with the person at defendant’s residence.

Defendant also argues, “Plaintiff is unable to move forward with its default judgment and must file a first amended complaint,” so “[i]t makes no sense for Defendant to remain in default status.”  (Reply, p. 5.)  The court agrees.  As the court ruled one day after defendant filed this motion, plaintiff’s request for default judgment exceeded the relief demanded in its complaint, so any default judgment for money (or for much of the injunctive relief plaintiff sought) would be void as beyond the court’s jurisdiction.  The court granted plaintiff leave to file a first amended complaint, which would vacate defendant’s default.  Unless plaintiff wants to obtain a judgment only for the relief demanded in its complaint, including no damages, setting aside defendant’s default is inevitable. 

Disposition

            The motion is granted.  The court hereby vacates the default of defendant Daniel Shawn Elder.  Defendant Daniel Shawn Elder is hereby ordered to file his proposed answer (Seyfnia Decl., Ex. A) forthwith.