Judge: Colin Leis, Case: 22AHCV00502, Date: 2022-09-15 Tentative Ruling

Case Number: 22AHCV00502    Hearing Date: September 15, 2022    Dept: 3

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT

DEPARTMENT 3

MOVING PARTY:                Defendant Hong Fu Liu

RESPONDING PARTY:       Plaintiff Soumoy Ly

Motion to Set Aside the Judgment and Any Default, and to Quash Any Writ of Possession/Execution CCP 473(b), 473.5, 473(d), 128a(8), 86(b)(3)

The court considered the moving papers and opposition in connection with this motion. No reply was filed.

BACKGROUND

            Plaintiff Soumoy Ly filed this unlawful detainer action on July 25, 2022 against Defendant Hung Fu Liu. The property at issue is a residential property located at 346 East Graves Ave., Monterey Park, California 91755 (the “Subject Property”).

            On August 15, 2022, a proof of service of summons was filed indicating that Defendant was served with the summons and complaint by substitute service on July 28, 2022. Default was thereafter entered against Defendant on August 15, 2022. Default judgment for possession only was also entered on August 15, 2022. A writ of possession was issued on August 17, 2022.

Defendant now moves for relief from default and default judgment and to quash the summons and the writ of possession.

DISCUSSION

As an initial procedural matter, the court notes Plaintiff’s argument that, to the extent that Defendant is moving to quash service of summons, the motion is untimely because it was not set for hearing within the time limits set forth in Code of Civil Procedure section 1167.4, subdivision (a) and California Rules of Court rule 3.1327(a). While Plaintiff is correct, the court may still rule on the merits of the motion. (See Olinick v. BMG Entertainment (2006) 138 Cal.App.4th 1286, 1296 [finding that a tardy hearing date on a motion under Code of Civil Procedure section 418.10 does not deprive the court of jurisdiction to consider the merits of the motion].)

Defendant seeks relief from default and default judgment pursuant to Code of Civil Procedure section 473, subdivision (b), Code of Civil Procedure section 473.5, and Code of Civil Procedure section 473, subdivision (d).

Relief from default is available under Code of Civil Procedure section 473, subdivision (b) if the defendant shows that the default was taken against him as a result of mistake, inadvertence, surprise, or excusable neglect. But Defendant has provided no argument or explanation for what he contends occurred to constitute surprise, excusable neglect, or inadvertence.

Code of Civil Procedure section 473.5 provides relief from default if service of summons “has not resulted in actual notice to a party in time to defend the action . . . .” (Code Civ. Proc., § 473.5, subd. (a).) Actual notice has been held to “mean[] genuine knowledge of the party litigant.” (Rosenthal v. Garner (1983) 142 Cal.App.3d 891, 895.) A motion to set aside default under section 473.5 must be accompanied by “a copy of the answer, motion, or other pleading proposed to be filed in the action.” (Code Civ. Proc., § 473.5, subd. (c).) “A party seeking relief under section 473.5 must provide an affidavit showing under oath that his or her lack of actual notice in time to defend was not caused by inexcusable neglect or avoidance of service.” (Anastos v. Lee (2004) 118 Cal.App.4th 1314, 1319.) Here, Defendant has failed to include a copy of a responsive pleading and has failed to include a declaration showing that his lack of actual notice was not caused by inexcusable neglect or avoidance of service.

“[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.] Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.) “Under section 473, subdivision (d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service.” (Ibid.) Defendant contends that he was not properly served with the summons and complaint. Again, the court notes that Defendant has not submitted any evidence (by way of a declaration executed under penalty of perjury) that he was not properly served. In any event, “[w]hen a defendant argues that service of summons did not bring him or her within the trial court’s jurisdiction, the plaintiff has ‘the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.’” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 387.) Here, the proof of service filed on August 15, 2022 creates a rebuttable presumption that service was proper. (Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1163.) The proof of service shows that all requirements for substitute service were met. (Code Civ. Proc., § 415.20, subd. (b).) And Defendant has offered no evidence to rebut the presumption of proper service.

Finally, Defendant makes various arguments concerning the merits of the unlawful detainer action, including that he never received a three-day or 60-day notice of termination and that there is no proof of service of the notice. (Losornio v. Motta (1998) 67 Cal.App.4th 110, 114 [“A 30-day or 3-day notice is valid and enforceable only if the lessor has strictly complied with [the] statutorily mandated requirements for service.”].) But the three-day notice to pay rent or quit and the proof of service for the notice is attached as an exhibit to the complaint. And if there are any defects with the service of the three-day notice, Defendant has failed to identify them.

CONCLUSION

Based on the foregoing, the court denies Defendant’s motion.

Plaintiff is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED:  September 15, 2022

_____________________________

Colin Leis

Judge of the Superior Court