Background

Plaintiffs Dennis Brokaw and Bonnie Brokaw (“Plaintiffs”) bring this action against Defendants John H. Upton (“Upton”), Morey & Upton, LLP, and others stemming from Morey & Upton’s previous representation of Plaintiffs in a personal injury action. Plaintiffs separately filed a suit for malpractice against Upton and Morey & Upton, which is currently pending in arbitration. Plaintiffs’ instant action alleges Defendants impermissibly conspired to interfere with the prosecution of their personal injury and malpractice actions. Upton now specially appears in this action to bring a motion to quash the service of process on him in this action and to vacate the March 15, 2023, entry of default against him. Plaintiffs oppose his motion.

 

Objections to Evidence

 Upton’s objections to the evidence submitted by Plaintiffs are OVERRULED.

 

Legal Standards

 “A defendant . . . may serve and file a notice of motion for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her. . . .” (C.C.P. § 418.10(a).) “‘Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.’ [Citation.]” (AO Alfa-Bank v. Yakovlev (2018) 21¿Cal.App.5th 189, 202.) “[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. “A court lacks jurisdiction over a party if there has not been proper service of process.” (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.) [Citation.]” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) A defendant’s knowledge of the action does not dispense with statutory requirements for service of summons. (Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466.)

 When a defendant moves to quash service of the summons and complaint, the plaintiff has “the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.” (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868.) “This burden must be met by competent evidence in affidavits and authenticated documentary evidence.” (Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1233.) “[T]he filing of a proof of service creates a rebuttable presumption that the service was proper” but only if it “complies with the statutory requirements regarding such proofs.” (Id. at 1441-1442; see also Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.)

An order entering default against a defendant who has not been properly served is a void order, subject to direct attack at any time. (County of San Diego v. Gorham (2010) 186 Cal App.4th 1215, 1226.) Moreover, “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.” (Id. at 1227 [citation omitted].) “[O]n direct attack, lack of jurisdiction may be shown by extrinsic evidence, i.e., evidence outside the judgment roll.” (Id. at 1228 [citation omitted].) “Moreover, even where relief is no longer available under statutory provisions, a trial court generally retains the inherent power to vacate a default judgment or order on equitable grounds where a party establishes that the judgment or order was void for lack of due process . . . or resulted from extrinsic fraud or mistake . . . .” (Ibid.) If “there has been a complete failure of service of process upon a defendant, he generally has no duty to take affirmative action to preserve his right to challenge the judgment or order even if he later obtains actual knowledge of it because ‘[w]hat is initially void is ever void and life may not be breathed into it by lapse of time.’” (Id. at 1229 [citation omitted].)

 “[I]t is now well acknowledged that an attorney has an ethical obligation to warn opposing counsel that the attorney is about to take an adversary’s default. (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 135.) The failure to provide such reasonable warning may justify the vacating of the entry of default. (Ibid.)

 

Analysis

 On March 14, 2023, Plaintiffs filed a proof of service stating Upton had been personally served on November 21, 2022, at an address in Costa Mesa, California. On March 15, 2023, Plaintiffs filed a request for entry of default against Upton, which was entered by the clerk that same day. It is undisputed that Plaintiffs’ counsel did not provide warning to Upton’s counsel prior to taking Upton’s default.

 On March 21, 2023, Upton filed the instant motion to quash. Upton’s motion stated the address on Plaintiffs’ proof of service was the address of the offices of the Morey & Upton, LLP firm, and Upton was working from home and not present at the Morey & Upton offices on November 21, 2022. (Upton Decl. at ¶3.) Upton states he has never been personally served with the complaint and summons in this action. (Id. at ¶4.) Upton also attaches a declaration from Morey & Upton employee Ariana Valencia-Bustos who states Upton was not present in the Morey & Upton offices on November 21, 2022, and that fellow employee Jessica Julian found the summons and complaint left in the hallway outside the locked office door. (Valencia-Bustos Decl. at ¶¶3-4.)

 In response to Upton’s motion, Plaintiffs filed an amended proof of service on March 30, 2023, which is in substance identical to the March 14, 2023, proof of service except that it adds a physical description of Upton as “Male, Caucasian, 5’5, 60 yrs, Brown Hair.” Upton responded to this amended proof of service by filing a supplemental declaration on April 3, 2023, again stating he was not present at the Morey & Upton offices on November 21, and stating that he is 5’10” and not 5’5” and attaching a copy of his driver’s license in support of that representation. (Supp. Upton Decl. at ¶4.) Upton also filed the declaration of Jessica Julian, who states that she is the one who found the summons and complaint in the hallway outside the Morey & Upton offices and handed them to Ms. Valencia-Bustos. (Julian Decl. at ¶2.) Plaintiffs responded with a declaration from their counsel stating he previously was employed by Morey & Upton and recalls Upton being 5’6” not 5’10” tall. (Dahl Decl. at ¶4.) Plaintiffs themselves also filed declarations stating they have personally met Upton before and “personally recall” he is 5’6” tall. (Dennis Brokaw Decl. at ¶4; Bonnie Brokaw Decl. at ¶4.) Plaintiffs conclude Upton must have lied to obtain a driver’s license stating he is 5’10” tall. (Id. at ¶¶5.)

 Upton argues that because he has never been properly served with process in this action, the Court does not have jurisdiction over him and the entry of default against him is void and must be set aside.

 In response, Plaintiffs argue Upton has waived any objection to service of process because he made a general appearance in this action by filing a motion to transfer venue. However, the January 5, 2023, motion to transfer venue was expressly brought by Defendant Morey & Upton only, not by Upton. The caption page identifies the motion as Morey & Upton, LLP’s motion, as does the notice itself. The fact that the body of the motion refers to Upton and Morey & Upton collectively as the “Upton Defendants” does not alter this fact. Plaintiffs also point to the fact that Upton signed a declaration in support of that motion, but the Court in Slaybaugh v. Superior Court (1977) 70 Cal.App.3d 216 held that filing a declaration in support of a co-defendant’s motion for change of venue did not constitute a general appearance. (Id. at 219-224.)

 Based on the facts before it, the Court also finds Upton has rebutted the presumption of proper service that arises from Plaintiffs’ proofs of service. The Court is not swayed by the parties’ focus on Upton’s height, but rather by the facts that two individuals have separately sworn under penalty of perjury that Upton was not physically present at the address at which he was allegedly served, and two individuals have separately sworn the subject summons and complaint were found on the floor of the hallway outside the office of Morey & Upton LLP. The proofs of service filed by Plaintiffs do not indicate Upton identified himself to the process server or otherwise confirmed his identity. At most they establish someone generally matching Upton’s physical description was served, but the declarations included with Upton’s motion sufficiently rebut the conclusion that this individual was indeed Upton himself.

 Plaintiffs argue the Court must credit the process server’s declaration above Upton’s declarations because Upton has retired and is no longer an officer of the Court. But Upton’s retirement does not affect the credibility of his statements. Plaintiffs also argue Ms. Valencia-Bustos’ declaration should be disregarded because she is an officer manager and is thus “directly under Upton.” (Opposition at 8.) Plaintiffs similarly complain that Ms. Julian’s declaration does not identify her job title at Morey & Upton. (Id. at 9.) The Court finds that Ms. Valencia-Bustos’ position as officer manager does not impact her credibility, nor does the fact that Ms. Julian’s job title is unknown cast doubt on her testimony that she found the summons and complaint outside the hallway. On this basis alone, the Court finds Upton has rebutted the presumption of proper service. The law favors resolution of claims on their merits, and accordingly his motion to quash service and vacate the default entered against him is GRANTED. This result is further bolstered by Plaintiffs’ failure to provide notice to Upton’s counsel that he would be seeking entry of default against Upton. Plaintiffs admit the Freeman Mathis & Gary, LLP firm expressly represented it was acting as counsel for both Morey & Upton and Upton himself in this action, as indicated on the cover and signature pages of the motion to transfer venue. Plaintiffs argue that because only Morey & Upton filed an anti-SLAPP motion to strike, they could assume the firm had withdrawn from its representation of Upton and Upton was not represented in this action. However, as Upton points out in his reply, if the Freeman Mathis & Gary, LLP firm had so withdrawn, it would have filed a substitution of attorney form with the Court as it had already identified itself as representing Upton in this action. Even if Plaintiffs’ counsel suspected the Freeman Mathis & Gary firm had withdrawn its representation, he could have easily confirmed this suspicion with a phone call or email. The Court also notes Plaintiffs’ counsel failed to file the proof of service showing service on Upton within the time requirements imposed by Code Civ. Proc. § 583.210(b). Rather than file such proofs within 60 days as required by section 583.210(b), Plaintiffs waited more than 100 days to file the proof of service on Upton and then immediately moved for entry of default the next day. This appears to have been a strategic decision designed to secure the entry of default against Upton before Upton could bring a motion challenging the purported service evidenced by Plaintiffs’ proof of service. These facts also support the granting of Upton’s motion.

 Conclusion

 Specially appearing Defendant John Upton’s motion to quash service and vacate entry of default is GRANTED.