Judge: Daniel M. Crowley, Case: BC721551, Date: 2023-03-08 Tentative Ruling

Case Number: BC721551    Hearing Date: March 8, 2023    Dept: 28

Defendant Laniece Jenkins’s Motion to Vacate Entry of Default and Default Judgment

Having considered the moving and opposing papers, the Court rules as follows.

BACKGROUND

On September 13, 2018, Plaintiff Safeway Insurance Company (“Plaintiff”) filed this action against Defendants Julius Lavont Randall (“Randall”) and Laniece Jenkins (“Jenkins”) for subrogation. Plaintiff later amended the complaint to include Defendant Chaz Malik Maxwell (“Maxwell”).

On October 16, 2019, the clerk entered default against Defendants. On November 5, 2021, the Court dismissed Maxwell, without prejudice, pursuant to Plaintiff’s request. On November 5, 2021, the Court entered default against Randall and Jenkins.

On January 18, 2023, Jenkins filed a Motion to Vacate Default to be heard on March 8, 2023. On February 16, 2023, Plaintiff filed an opposition.

There is no current trial date.

PARTY’S REQUESTS

Jenkins requests the Court set aside entry of default and default judgment on the basis that Jenkins never received notice of the complaint.

Plaintiff requests the Court deny the motion.

LEGAL STANDARD

CCP § 415.10 provides that “[a] summons may be served by personal delivery of the summons and of the complaint to the person to be served. Service of summons in this manner is deemed complete at the time of such delivery.” A party may also serve the complaint and summons via other statutorily authorized means, but service of both the complaint and summons is necessary. 

“We conclude California's Jurisdiction and Service of Process Act of 1969 preempted the subjects of jurisdiction and service of process and clearly rejected the rule that a defendant's general appearance after entry of a default judgment against him based upon a void service of summons retroactively makes valid that void service.” (In re Marriage of Smith (1982) 135 Cal. App. 3d 543, 545.)

CCP § 473.5 provides that if service of a summon has not resulting in actual notice to a party, said party may file a notice of motion to set aside default within a reasonable time. A reasonable time is considered to be either the two years after entry of default judgment or 180 days of receiving notice of default, whichever comes first. 

DISCUSSION

Plaintiff’s proof of service provides that Jenkins was served via personal service at 1167 Andrew Lane, Corona, CA 92881. The person served allegedly confirmed her identity as Jenkins. She is described as “a black female approx. 18-25 years of age, 5’6”-5’8” tall, weighing 140-160 lbs with brown hair.”

Jenkins submitted a motion arguing that she was not living at that address at that time; rather she has lived at 8774 Denker Avenue, Los Angeles, CA 90047, her entire life. She states she does not know anyone who lives at that address. She was only put on notice as to the garnishment of her wages on December 27, 2022. Plaintiff’s declaration states it is the declaration of “Cedrik Doughton”, rather than Laniece Jenkins, twice within the declaration—the Court assumes that this is a mistake, as Laniece Jenkins is also identified in the declaration and also signed the declaration.

Plaintiff’s opposition relies upon the proof of service, citing Evidence Code § 647 that the return of a process server appropriately registered establishes a presumption of service.

In reviewing Jenkins’ declaration, the Court finds that Jenkins has not actually provided evidence of lack of service. Jenkins’ declaration does not state she was not served—the moving papers do. Similarly, Jenkins’ declaration does not state she does not know anyone at that address—the moving papers do. The fact she did not live at that location is not indicative of the fact she was not properly served. When being personally served, a party can be served at any location, not just their home address. Jenkins does not state the person described does not match her description. There is insufficient evidence within the declaration to find that Jenkins was never served. The Court denies the motion.

CONCLUSION

Defendant Laniece Jenkins’s Motion to Vacate Entry of Default and Default Judgment is DENIED.

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.