Superior Court of California 

County of Los Angeles – West District 

Beverly Hills Courthouse / Department 205 

 

 

 

BACKGROUND 

This case arises from a dispute between neighbors.  Plaintiff Mitrah Bral owns her home located at 1207 Beverly Estates Drive, Beverly Hills, California 90210 (the “Bral Property”).  Defendants Khosrow Shoumer and Fariba Shoumer, individually and as trustees of the Shoumer Trust, own the property next door, located at 1211 Beverly Estates Drive, Beverly Hills California 90210 (the “Shoumer Property”).    

In 2020, Defendants began construction on the Shoumer Property.  During construction, Plaintiff alleges Defendants’ contractors entered into the Bral Property and destroyed Plaintiff’s landscaping and vegetation.  Defendants also removed Plaintiff’s wood fence bordering the Shoumer Property and erected plywood barriers.  Defendants’ construction activities culminated in two block walls and a chain link fence located between the Bral Property and the Shoumer Property.  Plaintiff alleges a land survey shows that the walls and fence are partly on the Bral Property.   

On October 7, 2022, Plaintiff filed a Complaint against Defendants alleging a single claim for trespass to land.  The Complaint seeks equitable relief in the form of a judicial order requiring Defendants to remove any portion of the block wall encroaching on the Bral Property.  Although Defendants were next door neighbors, Plaintiff served the Complaint by publication.     

On August 8, 2023, this Court entered a default judgment against Defendants, ordering them to remove any portion of the block wall encroaching on Plaintiff’s property within 30 calendar days of receipt of the Order by certified mail.  When Defendants failed to comply with the judgment, Plaintiff moved for contempt sanctions.  

This hearing is on Defendants’ motion to vacate default and judgment.  Defendants argue they were not actually served with the summons and complaint, and they did not discover the existence of the action until November 21, 2023 when they received a notice to appear for a December 15, 2023 status conference regarding contempt sanctions.  Plaintiff does not oppose the vacatur; however, Plaintiff seeks (1) sanctions in the amount of $1,000 because she claims Defendants evaded service, and (2) an opportunity to amend her complaint before any answer is filed.   

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 Code Civ. Proc. §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 CCP §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 

Code Civ. Proc. 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. 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.”  

Thus,¿a party can make a motion showing a lack of¿actual¿notice not caused by avoidance of service or inexcusable neglect, but such motion must be made no later than two years after entry of judgment, and the party must act with diligence upon learning of the judgment. (Code Civ. Proc. § 473.5; see Younger & Bradley, Cal. Motions (2009–2010 ed.) § 26:30, p. 766 (“[I]t¿does not require a showing that plaintiff did anything improper. … [T]he defaulting defendant simply asserts that he or she did not have actual notice … .”);¿Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) 

Here, the Court credits Defendants’ declarations that they did not receive actual notice of the action until November 21, 2023, and they were not seeking to avoid service.  Given the policy favoring resolution of actions on their merits, the Court grants the motion to vacate default and judgment.   

Plaintiff argues Defendants should be sanctioned for attempting to avoid service.  However, Plaintiff has not filed any declaration (including one from the process server) supporting her claim that Defendants were attempting to avoid service.  Accordingly, the Court denies Plaintiff’s request for sanctions.   

Plaintiff also asks that the Court not deem Defendants’ proposed answer filed, but allow Plaintiff to amend her complaint.  Plaintiff argues that granting her the opportunity to amend as of right would save judicial resources and not prejudice Defendants.  To conserve judicial resources and avoid the necessity of a motion to amend, the Court will not deem the answer as filed and will allow Plaintiff the opportunity to amend her Complaint as of right.     

 

 

CONCLUSION 

For the foregoing reasons, the Court vacates default and judgment.  Plaintiff has 10 days to file her Amended Complaint.  The Court sets a case management conference for March 12, 2024 at 9:00 a.m.   

 

IT IS SO ORDERED. 

 

DATED: January 30, 2024             ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court