Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

 

BACKGROUND 

This case arises from a car accident.  Plaintiff Cassandra Jimenez was driving her car at or near Crescent Drive and Dayton Way in Beverly Hills when Defendant Simon Nicholson-Pine pulled out of a Whole Foods’ parking lot, causing a violent T-bone collision.  Plaintiff alleges Defendant was driving his car negligently and recklessly.      

On November 21, 2023, Plaintiff filed a Complaint against Defendant.  The Complaint alleges two claims for general negligence and motor vehicle.  Plaintiff filed a proof of service showing Defendant was personally served with the summons and complaint on November 30, 2023 and with the statement of damages on February 13, 2024.  Plaintiff successfully requested the entry of Defendant’s default, which was entered by the Clerk’s Office on February 21, 2024.  No default judgment has yet been entered.   

This hearing is on Defendant’s motion to vacate entry of default.  Defendant claims he was not personally served with the complaint and summons or the statement of damages, as he was not home on the dates reflected in the proofs of service.   

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 should be set aside because he claims he was not personally served with the summons and complaint or the statement of damages.  The proofs of service indicate personal service at Defendant’s home address of 11718 Montana Avenue, Apt. 7, Los Angeles, California on November 30, 2023 and February 13, 2024.   

But Defendant maintains that during those dates, he was working away from home, at 10364 Almayo Avenue, Unit 406, Los Angeles, California 90064.  (Nicholson-Pile Decl. ¶¶ 3-4.)  In addition to his own declaration, Defendant submits the declaration of his employer who confirms Defendant was working away from home during those dates.  (Graham Decl. ¶¶ 4-5.) 

The proof of service for the statement of damages also provides a description that does not resemble Defendant.  Defendant is 5’8”, 145 pounds and 65 years of age.  (Nicholson Pile Decl. ¶ 6.)  The proof of service describes the person served as 5’11, 190 pounds and 75-76 years of age.   

On these facts, the Court concludes Defendant has presented evidence to contradict the rebuttable presumption of proper service. 

Plaintiff argues that even if Defendant was not personally served, Defendant concedes he received actual notice on February 13, 2024.  (Motion at 7:4-5.)  But actual notice will only defeat a motion to vacate if there is substantial compliance with the Code provisions governing service of summons.  (Pasadena Medi-Center Associates, 9 Cal.3d at 778.)  Plaintiff has pointed to no case law that has concluded that leaving documents taped to the front door, as is alleged by Defendant here, constitutes substantial compliance with the Code provisions. 

In any event, Plaintiff has failed to show it will be prejudiced by a trial on the merits.  Where there is no showing the party opposing the motion to vacate the judgment “has suffered any prejudice or that injustice will result from the trial of the case upon its merits, [only] very slight evidence will be required to justify a court in setting aside the default.”   (Benjamin v. Dalmo Mfg. Co., (1948) 31 Cal.2d 523, 531.)  Defendant’s evidence (i.e., his and his employer’s declarations) satisfy this low threshold.   

CONCLUSION 

For the foregoing reasons, the Court GRANTS Defendant’s motion to vacate default, and Defendant’s proposed answer attached to the motion is deemed filed.   

 

DATED:  April 29, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court