Judge: David B. Gelfound, Case: 23CHCV02153, Date: 2024-05-07 Tentative Ruling

Case Number: 23CHCV02153    Hearing Date: May 7, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION TO SET ASIDE ENTRY OF DEFAULT AND FOR LEAVE TO DEFEND

Motion filed: 3/21/24

MOVING PARTY: Defendant Alix A. Gutierrez (“Defendant”)

RESPONDING PARTY: Plaintiff Cynthia Stoddart (“Plaintiff”)

NOTICE: OK

RELIEF REQUESTED: An order from this Court setting aside the Default entered against Defendant on September 19, 2023.

TENTATIVE RULING: The Motion to Set Aside is GRANTED.

BACKGROUND

This action arises from the alleged encroachment by Defendant onto Plaintiff’s property located at 12325 Kagel Canyon Rd. Sylmar, California, 91342 (the “Subject Property”).

On July 20, 2023, Plaintiff Cynthia Stoddart (“Plaintiff”) filed a Complaint against Defendant Alix A. Gutierrez (“Defendant”) and Does 1 – 100, alleging the following causes of action: (1) Trespass, (2) Private Nuisance, (3) Quiet Title (Code of Civ. Proc., §§ 760.020, et seq.), (4) Conversion, (5) Ejectment, and (6) Vandalism.

On September 19, 2023, at Plaintiff’s request, the Clerk entered Defendant’s default (the “Default”).

            On November 27, 2023, Plaintiff filed a Request for Default Judgment. On the same day, Plaintiff proceeded to dismiss Defendants Does 1–100.

            On March 21, 2024, Defendant filed the instant Motion to Set Aside the Entry of Default dated September 19, 2023. Subsequently, on March 22, 2024, Defendant filed a Notice of Errata along with a proposed Answer to the Complaint.

            Subsequently, on April 24, 2024, Plaintiff filed an Opposition to the Motion. Following this, Defendant replied on April 30, 2024. 

ANALYSIS

Code of Civil Procedure section 473, subdivision (b) allows a court to set aside a default judgment arising from a party or attorney’s “mistake, inadvertence, surprise, or excusable neglect” (emphasis added). Courts recognize a “surprise” as any condition or situation in which a party is unexpectedly placed to the party’s injury, without any default or negligence by the party, against which ordinary prudence could not have been guarded. (County of Los Angeles v. Financial Cas. & Sur. Inc. (2015) 236 Cal.App.4th 37, 44.) A defendant may also move to vacate a judgment based on the court’s equitable power. (Rappleyea v. Campbell (1994) 8 Cal. 4th 975, 982.)

Defendant moves the Court to set aside the Default entered against her on September 19, 2023, on multiple bases, including (1) invalid service of process, and (2) excusable neglect.

1)      Validity of Plaintiff’s Substituted Service of Process

“[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.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.)

The method described as “substituted service” means a summons may be served by “leaving a copy of the summons and complaint at person’s dwelling, usual place of abode, usual place of business, or usual mailing address ... in the presence of a competent member of the household ... at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and 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.” (Code Civ. Proc., § 415.20, subd. (b).)

An individual may be served by substitute service only after a good faith effort at personal service has first been made: the burden is on the plaintiff to show that the summons and complaint “cannot with reasonable diligence be personally delivered” to the individual defendant. (§ 415.20, subd. (b); Evartt v. Superior Court (1979) 89 Cal.App.3d 795, 801.)

            Furthermore, Code of Civil Procedure section 684.220, subdivision (b) provides, in pertinent part, that “ [i]f service is made in the same manner as a summons is served under Section [] 415.20, proof of service may be made by affidavit of the person making the service showing the time, place, and manner of service and the facts showing that the service was made in accordance with the applicable statutory provisions. The affidavit shall recite or in other manner show the name of the person to whom the papers served were delivered and, if appropriate, the title of the person or the capacity in which the person was served.”

1)      Presumption of Valid Service

Filing of proof of service that complies with the applicable statutory requirements creates a rebuttable presumption of proper service. (Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.)

The reliability of a service declaration from a Registered Process Server is set by statute.  The return of a process server registered pursuant to Chapter 16 (commencing with §22350) of Division 8 of the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.  (Evid. Code §647.)   

In American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383 (Zara), the Sixth District Court of Appeal considered the issue of statutory compliance for service of process in a situation where the defendant had the actual knowledge of the lawsuit. The Zara Court reversed a default judgment entered by the trial court and set aside its order denying the defendant’s motion to quash, finding “[t]he process server untruthfully declared that he had personally served defendant. And defendant is not seeking to avoid adjudication of the merits of plaintiff’s claim. He is seeking to avoid a default judgment.” (Zara, supra, at p. 391-392.)

            There, the defendant in Zara submitted his own declaration, stating, “[¶] 2. I first noticed a Summons and Complaint in this action at my doorstep, upon returning to my home at or about 8 PM on January 31, 2010. [¶]3. Plaintiff’s proof of summons, filed in court, describes me as Asian with black hair. [¶] 4. I am not Asian; nor have I black hair; nor are there any members of my household who fit that description, as was provided for me in plaintiff’s proof of service. I have lived alone as the sole member [of] my household for at least the last ten years. There are no other competant [sic] members of my household who could have competantly [sic] received the complaint and summons for this action.” (Id., at p. 388.)

Here, the disputes over the validity of the service of process share a striking similarity with that in Zara. Although we are faced with a substituted service, the analysis of its statutory compliance mirrors the analysis for personal service as provided under Code of Civil Procedure section 684.220, subdivision (b).

Here, Defendant presents her testimony that “I live with my twenty-two-year-old (22) son and eighty-year-old (80) mother. My son owns a 99-cent store in North Hollywood, California which requires him to be out of the house from as early [as] 7:00 a.m. and as late as 8:00 p.m. As my mother ... goes with my son to work. Additionally, my son is 22, standing 5’11” and 163 pounds with black hair. Thus, the service of a co-occupant at my home is an impossibility based on the facts and circumstances.” (Gutierrez Decl., ¶ 10.) Additionally, Defendant attests, “On

August 10, 2023, ... I found a copy of the Summons and Complaint laying under a shoe rack outside my front door.” (Id., ¶ 11.) 

The Court notes that the Proof of Service filed by Plaintiff presents “On 8/9/2023 at 06:06 PM I left the documents listed in item 2 with or in the presence of ... JOHN DOE (Gender: M Age 30 Height:5’6” Weight:130 Race Hispanic Hair: Brown Other: Co Occupant” (Opp’n., Ex. “C,” 8/10/23 Proof of Service by Substituted Service.)

Just like in Zara, where the defendant provided uncontested evidence that the process server’s description was untruthful, thereby demonstrating non-compliance with the statutory requirements, Defendant in the present case presents sufficient factual testimony showing the discrepancies in the description of the only male co-occupant who allegedly received the substituted service. Furthermore, Defendant is not seeking to avoid adjudication of the merits of the case; instead, she is seeking to avoid a default judgment. Contrarily, Plaintiff has not explained the discrepancies or contest the Defendant’s argument.

Mirroring the rationale in Zara, the Court finds that Defendant has met her burden to rebut the presumption and Plaintiff’s service of process did not comply with statutory requirements.

The Court next considers Plaintiff’s rationale that the Default should be sustained due to Defendant’s actual notice.

2)      Defendant’s Actual Notice

Code of Civil Procedure section 473.5, subdivision (a) provides, “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.

Actual notice of the action alone, however, is not a substitute for proper service and is not sufficient to confer jurisdiction. “[N]o California appellate court has gone so far as to uphold a service of process solely on the ground the defendant received actual notice when there has been a complete failure to comply with the statutory requirements for service.” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 414.)

Of particular concern, where the issue is that the defendants have not even been properly served, it is not even relevant whether the defendants have “actual knowledge,” the default and any judgment entered thereafter is deemed void as a matter of law.  (See, e.g., Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1124 [“Whether the defendant caused his own lack of notice has no bearing on the propriety of service. Even actual notice is not a substitute for proper service.”], citing 2 Witkin, Cal. Procedure (3d ed. 1985) Jurisdiction §92 at p. 459; Olvera v. Olvera (1991) 232 Cal.App.3d 32, 40 [“Until summons is served, there is no need to respond; a defendant may believe that the action will not be pursued.”].)

Here, Plaintiff argues that Defendant had actual knowledge of the lawsuit, as she “called ... Plaintiff’s Counsel and spoke with Legal Secretary” about the lawsuit on August 10, 2023. (Opp’n., at p. 6, Ex. “D.”) Furthermore, Plaintiff notes that Defendant’s counsel contacted Plaintiff’s counsel sometime in September, demonstrating that Defendant had more than enough time to file a responsive pleading or attempt to settle the case. (Opp’n., at p. 6.)

However, as established case law outlines that a defendant’s actual notice is relevant under Code of Civil Procedure section 473.5, subdivision (a), only if the service of process has substantially complied with statutory requirements. (See Carol Gilbert, Inc. v. Haller (2009) 179 Cal.App.4th 852, 855; See also Zara, supra, 199 Cal.App.4th 383.)

As previously discussed, the Court has determined that the Proof of Service fails to comply with statutory requirements. Consequently, the argument predicated on Defendant’s actual notice is irrelevant.

Based on the foregoing, the Court concludes that Entry of Default must be set aside based on the finding that Plaintiff’s service of Summons and Complaint did not substantially comply with statutory requirements. The Court does not need to consider Defendant’s alternative theory for relief under Code of Civil Procedure section 473, subdivision (d).

Therefore, the Court GRANTS the Motion to Set Aside Entry of Default.

CONCLUSION

The Court GRANTS Defendant’s Motion to Set Aside Entry of Default dated September 19, 2023.

The Court GRANTS Defendant’s request for leave to defend. Accordingly, Defendant is ordered to file her Answer within 10 days.

Moving party is ordered to give notice.