Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

 

BACKGROUND 

This is a collections case.  Defendant Babak Vahabzadeh opened a credit card account with Plaintiff Bank of America, N.A. or its predecessor in interest.  Defendant failed to make periodic payments and now owes over $68,000.  Plaintiff moved for entry of default judgment, which the Court granted on July 17, 2023.   

This hearing is on Defendant’s motion to vacate entry of default judgment.  Defendant claims he was not properly served with the complaint and summons, and his physical characteristics do not match the description of the person described in the proof of service.   There was no opposition filed as of the posting of this tentative ruling. 

 

 

LEGAL STANDARD 

“Compliance with the statutory procedures for service of process is essential to establish personal jurisdiction.  Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.  Under section 473, subdivision (d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service.”  (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.)   

“When a court lacks jurisdiction in a fundamental sense, an ensuing judgment is void, and thus vulnerable to direct or collateral attack at any time.”  (Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1249 (trial court properly granted motion for relief from default and default judgment based on CCP §473(d) where defendants argued there was no valid service of process and they lacked minimum contacts with California).)   

A defendant may therefore move to set aside a default and default judgment based on improper service and lack of personal jurisdiction under Code Civ. Proc. §473(d).  (Id. at 1250.)  A defendant need not bring a motion to quash prior to or in conjunction with a motion for relief from default and default judgment pursuant to Code Civ. Proc. §473(d).  (Id.) 

It is always the plaintiff’s burden to establish the existence of jurisdiction.  (Id. at 1250-1251; Dill v. Berquist Const. Co., Inc. (1994) 24 Cal.App.4th 1426, 1439-1440.)  Thus, even though defendant is the moving party on a motion to quash or a motion to set aside a void judgment under Code Civ. Proc. §473(d), the burden is on plaintiff to establish proper service.  (Dill, 24 Cal.App.4th at 1439-1440.)  A valid proof of service gives rise to a rebuttable presumption of valid service.  (Id. at 1441-1442.)  But the presumption may be overcome by contrary evidence.  (City of Los Angeles v. Morgan (1951) 105 Cal.App.2d 726, 731.) 

The statutory requirements of service are construed to uphold jurisdiction, rather than defeat it.  (See Pasadena Medi-Center Associates v. Sup.Ct. (1973) 9 Cal.3d 773, 778.)  As long as the defendant receives actual notice of the lawsuit, substantial compliance with the Code provisions governing service of summons will generally be held sufficient.  (Id.).   

DISCUSSION 

Defendant argues default judgment should be set aside because he claims he was not properly served with the summons and complaint.  The proof of service states that the individual served is a Middle Eastern female, 55-65 years old, 5’4”-5’6” tall, and weighing 120-140 lbs, with an accent.  However, Defendant claims he is a white Caucasian male, born and raised in America, with no accent, and he is 6 feet tall and weighs 205 lbs.  Plaintiff has not opposed Defendant’s motion to vacate judgment.  Accordingly, as there is no opposition and Defendant has presented evidence to contradict the rebuttable presumption of proper service, the Court will vacate the entry of default judgment.   

CONCLUSION 

For the foregoing reasons, the Court grants Defendant’s motion to vacate default judgment.   

 

DATED:  March 26, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court