Judge: Daniel S. Murphy, Case: BC339633, Date: 2022-08-29 Tentative Ruling

Case Number: BC339633    Hearing Date: August 29, 2022    Dept: 32

BACKGROUND

            Plaintiff L&J Assets, LLC initiated this action on September 9, 2005, against Defendant Dianne Crummer. Defendant did not answer the complaint, and a default judgment was entered against Defendant on March 27, 2006. The judgment has been renewed twice, most recently on April 18, 2022. The debt has been assigned to Bag Fund, LLC, the current judgment creditor.

            On July 22, 2022, Defendant filed the instant motion to set aside default on the grounds that she did not receive service of the lawsuit and did not have actual knowledge until February 2022. Defendant’s primary contention is that she did not reside at the address where personal service was purportedly effectuated.

LEGAL STANDARD

“Proper service of process of a petition or complaint is the means by which a court obtains personal jurisdiction over a party.” (Abers v. Rohrs (2013) 217 Cal.App.4th 1199, 1206.) “Lack of personal jurisdiction renders a judgment (or default) void, and the default may be directly challenged at any time.” (Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1250.) “Even undisputed actual notice of a proceeding does not substitute for proper service of the petition or complaint.” (Abers, supra, 217 Cal.App.4th at p. 1206.)

Even if proper service is effectuated, “[t]he court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473(b).) Additionally, “[w]hen 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.” (Id., § 473.5.)

DISCUSSION

            The proof of service filed with the Court on February 3, 2006 states that Defendant was personally served on December 28, 2005 at 4321 7th Ave., Los Angeles, CA 90066. This address contained the incorrect zip code, but the registered process server executed an amended proof of service with the correct zip code, 90008. (Hernandez Decl., Ex. H.) The invoice for the service indicates that Defendant was personally served at the 90008 zip code. (Id., Ex. G.)

            Defendant avers that she has “no connection at all to the address located at 4321 7th Ave, Los Angeles, CA 90066,” presumably because of the incorrect zip code. (See Crummer Decl. ¶ 3.) However, Defendant acknowledges that she did purchase a home at 4321 7th Ave., Los Angeles, CA 90008. (Id., ¶ 5.) Defendant avers that she lived at that address “off and on until about 2004.” (Id., ¶ 7.) Defendant claims that “[o]n December 28, 2005, I was not at, nor did I reside at the home located at 4321 7th Ave, Los Angeles, CA 90008.” (Id., ¶ 12.) As a result, Defendant contends she “did not learn about the existence of this lawsuit until the end of February of 2022.” (Id., ¶ 14.)

            However, Plaintiff provides evidence that Defendant was personally served at the 4321 7th Avenue address and did have personal knowledge of the lawsuit. As discussed above, the registered process server executed an amended proof of service with the correct zip code. (Hernandez Decl., Ex. H.) Service by a registered process server is presumed valid. (Evid. Code, § 647.) Defendant does not dispute that there is an amended proof of service with the correct zip code. Defendant’s address has been verified multiple times throughout the years. (Hernandez Decl. ¶ 8; Hacker Decl. ¶¶ 4, 6-12.) Defendant does not dispute that 4321 7th Avenue is her registered address and that she has never changed it.

            Additionally, despite claiming not to have resided at the property since 2004, Defendant expresses knowledge of specific details of the debt assignment that she could only have been exposed to through correspondence sent to that address in August 2005. (See Opp. 8:15-21; Crummer Decl. ¶ 15; Hernandez Decl. ¶ 5, Ex. D.) Defendant does not address this evidence or evidence of numerous other pleadings served to her at the address throughout the years. (See Opp. 4:1-5:2.) Notably, as recently as April 2022, Defendant herself sent correspondence to Bag Fund’s attorney from the 4321 7th Avenue address. (Quigg Decl. ¶ 4, Ex. S.) Defendant does not dispute that she sent correspondence from the address that she claims not to have lived at since 2004.   

            In reply, Defendant reduces her contention to the fact that the proof of service contained an incorrect zip code, arguing that actual notice is insufficient to confer jurisdiction if service is defective. However, as discussed above, the registered process server executed a corrected proof of service with the right zip code. A clerical error on the paper does not change the fact that Defendant was personally served at the correct address. Instead of addressing Plaintiff’s evidence, in the reply, Defendant seems to only deny that she resides at 4321 7th Ave., Los Angeles, CA 90066. (See Reply 2:7-12, 2:23-3:2.) Defendant does not provide anything to rebut the evidence that she resides at 4321 7th Ave., Los Angeles, CA 90008 and did so at the time of service. The Court finds that Defendant is not credible and has not rebutted the presumption of valid service.

CONCLUSION

            Defendant’s motion to set aside default is DENIED.