Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Defendant Ryan Anderson 

 

RESPONDING PARTY: Plaintiff On Deck Capitol, Inc. 

 

BACKGROUND 

This action arises from an unpaid business loan.  On or about January 16, 2019, Defendants Smplytrvl, LLC and Ryan Anderson entered into a written contract with Celtic Bank for a business loan (the “Agreement”).  (Compl. ¶ 8.)  Anderson personally guaranteed payment.  (Id.)  Thereafter, Defendants defaulted under the terms of the Agreement by failing to make payments.  (Compl. ¶ 9.)  Prior to the commencement of this action, Celtic Bank assigned its claims against Defendants to Plaintiff On Deck Capitol for collection, and Plaintiff is now the lawful owner and holder of the claims.  (Compl. ¶ 2.)  On September 12, 2022, Plaintiff dismissed Smplytrvl, LLC, leaving Anderson as the sole defendant. 

This hearing is on Anderson’s motion to set aside default judgment.  Anderson argues Plaintiff failed to properly serve him, and therefore, the Court had no jurisdiction to enter the default judgment against him.  Plaintiff does not oppose the motion to set aside.   

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 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 

Plaintiff filed a proof of service, showing that on July 3, 2022, Defendant was served personally.  Specifically, the Summons and Complaint and other documents were left with “Ryan Anderson, an individual with identity confirmed by subject saying yes when named.”  (Ex. A to Sternberg Decl.)  The person on whom service was made is described as “35-45 years of age, 5’6”-5’8” and weighing 160-180 lbs.”  (Ibid.)¿ The address where service was effected is listed as “12430 Mitchell Avenue, Los Angeles, California” (the “Service Address”).  (Ibid.)  The Proof of Service is signed by a registered California process server under penalty of perjury.¿ (Ibid.).¿ Evidence Code section 647 provides that a registered process server’s declaration of service establishes a rebuttable presumption of proper service.  (American Express Centurion Bank v. Zara (2011) 199¿Cal.App.4th 383, 390; Evid. Code § 647.)¿¿  

This rebuttable presumption shifts the burden to Defendant to produce evidence showing he was not properly served.  Defendant argues that service was defective because contrary to the proof of service, he was not personally served.  (Anderson Decl. ¶ 3.)  He is 6 foot tall, not 5’6”-5-8".  (Anderson Decl. ¶ 4.)   And he was not even in California at the time service was effected; Defendant submits receipts showing he was in Nevada on July 2 and July 3.  (Anderson Decl. ¶ 7; Ex. F to Anderson Decl.)  Defendant used the Service Address (the home of his friend) for his online business from July 2020 and August 2021, but he does not live at the address.  (Anderson Decl. ¶ 6.)  He did not know he was named as a Defendant in this lawsuit until he visited his friend who owns and resides at the Service Address in February 2023, at which point he promptly hired counsel to investigate and seek relief from the default judgment.  (Anderson Decl. ¶ 10.)             

On these facts and given the policy favoring a trial on the merits and only slight evidence being necessary to set aside default, the Court concludes that Defendant has met his burden to show he was not properly served and the Court did not have jurisdiction to enter a default judgment.  (See, e.g., Shamblin v. Brattain (1988) 44 Cal.3d 474, 478 (“It is the policy of the law to favor, whenever possible, a hearing on the merits.  Appellate courts are much more disposed to affirm an order when the result is to compel a trial on the merits than when the default judgment is allowed to stand.  Therefore, when a party in default moves promptly to seek relief, very slight evidence is required to justify a trial court’s order setting aside a default.” (citations omitted).) 

The Court next considers the timeliness of Defendant’s motion to set aside default. Section 473(d) places no time limitation on making a motion to set aside a void judgment, and the trial court retains equitable power to set aside a void judgment or order at any time. (Tearlach Resources Limited v. Western States Internat., Inc. (2013) 219 Cal.App.4th 773, 779.)  A judgment or order that is void on its face may be set aside at any time after its entry by the court which rendered the judgment. (Id.)  Accordingly, the Court concludes the motion is timely.    

CONCLUSION 

Based on the foregoing, the Court GRANTS Defendant’s motion to set aside default judgment.  The Court further orders that Defendant may separately file the proposed answer attached to his motion. 

 

IT IS SO ORDERED. 

 

DATED: May 3, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court