Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Defendant Shahin Khajavi 

 

RESPONDING PARTY: Plaintiff Huili Guo 

 

BACKGROUND 

This is an unlawful detainer action.  Plaintiff Huili Guo (“Landlord”) is the owner of 1937 S. Beverly Glen Blvd, Apt 20, Los Angeles, California (the “Property”).  Landlord leased the Property to Defendant Shahin Khajavi (“Tenant”).  However, Khajavi does not live on the Property; instead, the Property is occupied by his ex-wife (Nazgol Hemmatian) and his son.  Landlord claims Khajavi has failed to pay rent due on the lease.  

This hearing is on Tenant’s motion to set aside default judgment.  Tenant argues Landlord failed to properly serve him, and therefore, the Court had no jurisdiction to enter the default judgment against him.   

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.) 

TIMELINESS 

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.)  Accordingly, the Court concludes Tenant’s motion is timely.  

Tenant’s motion is also procedurally proper.  It attaches a proposed answer as required by Code Civ. Proc. §473.5(b): “The party shall serve and file with the notice [of motion to set aside default judgment] a copy of the answer, motion, or other pleading proposed to be filed in the action.” 

DISCUSSION 

Landlord filed a proof of service, showing that on March 18, 2023 at 1:05 p.m., Tenant was served personally at the Property.  The Proof of Service is signed by a registered California process server under penalty of perjury.¿ Evidence Code § 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 Tenant to produce evidence showing that he was not properly served.  Tenant has submitted a declaration, attesting that he was not at the Property on March 18, 2023.  (Khajavi Decl. ¶ 4.)  He avers that he was never served with the  summons and complaint in this action, and on the date of purported service, he was at his own home in Beverly Hills and later at a basketball practice with his son in Van Nuys.  (Khajavi Decl. ¶¶ 5-6.)   Tenant also submits the declaration of his ex-wife who avers that no one was at the Property between 11:00 a.m. until 4:30 p.m. or 5:00 p.m. on March 18, and there were no legal papers left at the door or anywhere else.  (Hemmatian Decl. ¶9.)   

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 Tenant 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).) 

CONCLUSION 

Based on the foregoing, the Court GRANTS Defendant’s motion to set aside default judgment.   

 

IT IS SO ORDERED. 

 

DATED: May 18, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court