Judge: Christopher K. Lui, Case: 22STCV01186, Date: 2022-10-25 Tentative Ruling
Case Number: 22STCV01186 Hearing Date: October 25, 2022 Dept: 76
Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein. As required by Rule 3.1308(a)(2), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue. Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776. If notice of intention to appear is not given and the parties do not appear, the Court will adopt the tentative ruling as the final ruling.
Plaintiff alleges that Defendant has wrongfully evicted Plaintiff and wrongfully withheld her personal documents, as well as failed to return Plaintiff’s security deposit.
Defendant Ken Marefat moves to quash the service of summons and to set aside the default.
TENTATIVE RULING
The hearing on Defendant Ken Marefat’s motion to set aside default is CONTINUED to November 18, 2022.
Defendant is to file a supplemental declaration by November 4, 2022 in
accordance with the Court’s comments. Plaintiff may file an objection to the
supplemental declaration by November 10, 2022.
The hearing on the request for entry of default judgment is CONTINUED to November 18, 2022, and may or may not become moot, depending on the ruling on the motion to set aside default.
The motion to quash service of summons is DENIED.
ANALYSIS
Motion To Set Aside Default
Defendant Ken Marefat moves to quash the service of summons and to set aside the default.
Defendant cites CCP § 473.5, which provides:
(a) 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,
he or she may serve and file a notice of motion to set aside the default or
default judgment and for leave to defend the action. 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.
(b) A notice of motion to set aside
a default or default judgment and for leave to defend the action shall
designate as the time for making the motion a date prescribed by subdivision
(b) of Section 1005, and it shall 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.
(c) Upon a finding by the court
that the motion was made within the period permitted by subdivision (a) and
that his or her lack of actual notice in time to defend the action was not
caused by his or her avoidance of service or inexcusable neglect, it may
set aside the default or default judgment on whatever terms as may be just and
allow the party to defend the action.
(Civ. Proc. Code § 473.5(a)-(c)[bold emphasis
added].)
Here, Defendant has submitted a proposed Answer, attached as Exhibit B to the motion, as required by CCP § 473.5(b). This motion was filed on September 14, 2022, which is 128 days after default was entered on May 10, 2022.
The Declaration of Ken Marefat states that he was never served with a copy of the summons and complaint, and the first time he learned of this lawsuit was on July 11, 2022 while appearing on another case. (Marefat Decl., ¶¶ 5, 8.) However, the Marefat Declaration does not state under oath that his “lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect.” (Civ. Proc. Code, § 473.5(b).) As such, Defendant has not demonstrate that he is entitled to have the default set aside. However, the Court will allow Defendant to submit a supplemental declaration which corrects the above-identified deficiency.
As such, the hearing on the motion to set aside default is CONTINUED to November 18, 2022 at 8:30 AM.. Defendant is to file a supplemental declaration by November 4, 2022. Plaintiff may file an objection to the supplemental declaration by November 10, 2022.
The hearing on the request for entry of default judgment is CONTINUED to November 18, 2022 at 8:30 AM, and may or may not become moot, depending on the ruling on the motion to set aside default.
To the extent that Defendant argues that the service of summons should be quashed because substituted service was not properly effected, the Court does not find this to be persuasive either.
“[A] judgment is void for lack of
jurisdiction of the person where there is no proper service of process on or
appearance by a party to the proceedings.” (Citation omitted.) Knowledge by a
defendant of an action will not satisfy the requirement of adequate service of
a summons and complaint. (Citations omitted.) Because the “total absence of
notice in any form cannot comport with the requirements of due process”
( [*1227] citation omitted), it has been said that a judgment of a court lacking such personal jurisdiction is a violation of
due process (citation omitted), and that “a default judgment entered
against a defendant who was not served with a summons in the manner prescribed
by statute[to establish personal jurisdiction] is void.” (Citation
omitted.)
(County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1226-27
[bold emphasis added].)
Regarding substituted service on an individual, CCP § 415.20(b) provides:
(b) 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. Service of a summons in this manner is deemed complete on the 10th day
after the mailing.
(Civ.
Proc. Code § 415.20(b)[bold emphasis added].)
Here, the process service declares that the house at 3310 East Chevy Chase Drive, Glendale, CA 91206 had a white care in the driveway with license number 8jmj983 and a Honda Pilot license place 7zsp909. (Sean Smith, Declaration of Due Diligence.) Defendant admits that these vehicles belong to Defendant’s family members, both female. (Motion, Page 5:14-17.) Defendant indicates that he owns a gold color SUV and green color sedan which he always parks in front of his house, but the process server does not mention these. First, as Defendant admits the other two vehicles are owned by Defendant’s family members, there is strong evidence that the process server was at the correct address to serve Defendant at his home.. Second, maybe Defendant was not home at the time, so either the gold color SUV or the green color sedan was not parked out in front of the house.
In this regard, the difference in the description between the process server’s Declaration of Diligence, and Defendant’s description of himself is consistent with someone who fits the description given by the process server, other than Defendant himself, being served on February 21, 2022. Defendant does not claim that he knows of no such male relative who fits the process server’s description and who may have been at the house that day. Indeed, the process server indicates that he served a “relative” who indicated he is a resident in at the location who would accept service. This is sufficient to satisfy Civ. Proc. Code § 415.20(b) because it is reasonably calculated to achieve actual substituted service. The fact that the person who accepted service lied about whether he lived at the house does not defeat service.
The filing of a proof of service which complies with statutory requirements creates a rebuttable presumption that the service was proper. (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441-42.) “Due process of law does not require actual notice, but only a method reasonably certain to accomplish that end.” (Baughman v. Medical Board (1995) 40 Cal.App.4th 398, 402.)
Leaving papers with an apparent coresident at an address publicly registered by the defendant, as required by law, is a method of service reasonably calculated to achieve actual service, and is therefore facially valid, whether or not actual service is accomplished on the facts of a given case. (Citations omitted.)
(Trackman v. Kenney (2010) 187 Cal.App.4th 175, 185.)
The Court also notes that, by filing the proposed Answer, Defendant will be consenting to the Court’s exercise of personal jurisdiction over him,.
As such,
the motion to quash service of summons is DENIED.