Judge Deirdre Hill, Case 22TRCV00477 2023-04-27 Tentative Ruling

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Motion to Set Aside Default and Default Judgment and Quash Service of Summons and Complaint

The motion is GRANTED. The default entered on October 12, 2022 and the default judgment entered on October 13, 2022 are vacated and set aside. Defendant is ordered to file a responsive pleading within five days.

On June 15, 2022, plaintiff Hongchun Ma filed a complaint against Feng Jun Li for common counts.

On January 9, 2020, a default judgment was entered against defendant in the amount of $43,074.35.

CCP §473.5(a) states, in relevant part: “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. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.”

CCP §473.5(b) requires that “a notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.”

CCP §473.5(c) allows “upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.”

“[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 (1994) 24 Cal. App. 4th 1426, 1444. “Where a party moves under section 473(d) to set aside ‘a judgment that, though valid on its face, is void for lack of proper service, the courts have adopted by analogy the statutory period for relief from a default judgment’ provided by section 473.5, that is, the two-year outer limit.” Trackman v. Kenney (2010) 187 Cal. App. 4th 175, 180 (citations omitted). “Thus, defendant cannot assert under section 473(d) that the judgment, although facially valid, is void for lack of service.” Id. at 181.

A defendant may serve and file a notice of motion to quash service of summons on the ground of lack of jurisdiction of the court over him or her. CCP § 418.10(a). Code of Civil Procedure section 418.10 provides the exclusive procedure for challenging personal jurisdiction at the outset. Roy v. Superior Court (2005) 127 Cal. App. 4th 337, 342. Although defendant is the moving party, the burden of proof is on plaintiff to defeat the motion by establishing that jurisdictional grounds exist. Mihlon v. Superior Court (1985) 169 Cal. App. 3d 703, 710.

Under Evidence Code § 647, “[t]he return of a process server registered pursuant to Chapter 16 (commencing with Section 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.” Under Evidence Code § 604, “[t]he effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption. Nothing in this section shall be construed to prevent the drawing of any inference that may be appropriate.”

Defendant Feng Jun Li requests that the court vacate the default and default judgment entered against her pursuant to CCP §473.5 and to quash service of the summons and complaint. Defendant contends that she was not served with the summons and complaint and thus, she lacked actual notice in time to defend the action.

The proof of service of the summons and complaint filed on October 11, 2022, indicates that she was personally served at 22519 Crenshaw Blvd., Torrance, by a registered process server on July 21, 2022, at 11:49 a.m.

Defendant states in her declaration that she was never personally served or served by mail with the summons and complaint. She explains that 22519 Crenshaw Blvd. is the address of a massage business owned by defendant. In July 2022, she worked in the business on a part-time basis. She does not remember whether she was at the address on July 21, 2022. She states that there were several independent contractors who worked in the business on a part-time basis in July 2022. She does not remember who worked at the address on July 21, 2022. All co-workers are Asian females. She states that she “only speak[s] very little English, and I am not capable of understanding legal documents in English.” She states that all the co-workers speak very little English and are not capable of understanding legal documents in English. None of the co-workers ever told her that she was served or gave her the summons and complaint. She also states that since she cannot read and write English, her attorney translated the declaration into Mandarin and read it to her. She attaches a proposed answer.

In opposition, plaintiff argues that the declaration is insufficient to meet personal knowledge because it was drafted and prepared by her attorney. Plaintiff also argues that the declaration does not address the notice of entry of default mailed to her and that she did not act diligently in making a motion.

The court finds that the motion is timely, and that defendant has met her burden of presenting sufficient evidence that service of summons did not result in actual notice.