Judge: Frank M. Tavelman, Case: 23BBCV00575, Date: 2024-03-15 Tentative Ruling

Case Number: 23BBCV00575    Hearing Date: March 15, 2024    Dept: A

The Court is not requesting oral argument on this matter.  Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required.  Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no notice of intent to appear is received.”  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Alfred Josh Moi Moosa (Plaintiff) brings this action against Jonathan Madera & Kenia Madera (Defendants). Plaintiff alleges that he was injured in a motor vehicle collision with Defendants and seeks damages pursuant to those injuries.

On December 25, 2023, default was entered for Plaintiff. On November 16, 2023, the Court entered default judgment in Plaintiff’s favor.

Defendants now move to vacate the default judgment on grounds of defective service. Defendants claim they did not reside at the address for service during the relevant time. Defendants also move to quash the service of summons upon them, again alleging  they were improperly served. Plaintiff opposes each motion and Defendants reply.

ANALYSIS: 

I.                    LEGAL STANDARD 

Motion to Vacate Default Judgment

CCP § 473.5(a) provides that a party who has not received timely actual notice may file a notice of motion to set aside the default judgment: “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.”

A defendant seeking relief under § 473.5 must submit “an affidavit showing under oath that the party’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect.” (CCP § 473.5; Anastos v. Lee (2004) 118 Cal.App.4th 1314, 1319; Khourie, Crew & Jaeger v. Sabek, Inc. (1990) 220 Cal.App.3d 1009, 1013.) A motion seeking relief under CCP § 473.5 must be served and filed within a reasonable time but in no event later than two years after the entry of default judgment or 180 days after service of written notice that default or default judgment has been entered, whichever is earlier. (CCP § 473.5(c).)

The party seeking relief bears the burden of proof in establishing a right to relief. (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1205.) Because it is the policy of the law to favor a hearing on the merits, very slight evidence is required to justify a trial court’s order setting aside a default. (Ramos v. Homeward Residential, Inc. (2014) 223 Cal.App.4th 1434, 1444.) Moreover, the Court has the power to set aside the entry of default or default judgment where there is improper service of the summons. (See C.CP. § 473(d); Ramos supra, 223 Cal.App.4th at 1443-44.)

Unlike relief under C.C.P. § 473(b), relief for improper service under C.C.P. § 473.5 does not require the assertion of a meritorious defense, i.e., does not require moving party to attach a proposed responsive pleading.

Motion to Quash Service

“Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.”  (AO Alfa-Bank v. Yakovlev (2018) 21¿Cal.App.5th 189, 202 [internal quotations marks and citation omitted].)  “To establish personal jurisdiction, compliance with statutory procedures for service of process is essential.”  (Kremerman v. White (2021) 71 Cal.App.5th 358, 371.)  Defendant’s knowledge of the action does not dispense with statutory requirements for service of summons.  (Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466.) 

“A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow” may move “to quash service of summons on the ground of lack of jurisdiction of the court over him or her” that results from lack of proper service.  (C.C.P. § 418.10(a)(1).)  A defendant has 30 days after the service of the summons to file a responsive pleading.  (C.C.P. § 412.20(a)(3).)  

“When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.’” (Summers v. McClanahan¿(2006) 140 Cal.App.4th 403, 413.)

“It is axiomatic that strict compliance with the code's provisions for service of process is not required. (Ramos v. Homeward Residential, Inc., 223 Cal. App. 4th 1434, 1443.) “[I]n deciding whether service was valid, the statutory provisions regarding service of process should be liberally construed to effectuate service and uphold the jurisdiction of the court if actual notice has been received by the defendant.” (Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 313.) In essence, substantial compliance with the code’s requirements for service of process is sufficient. (Id.) 

II.                 MERITS

Motion to Vacate/Set Aside

The proofs of service in this matter show that service was identical to each Defendant. Plaintiff purportedly served Defendants via substitute service at 15646 Lucille Ct., Canyon Country, CA 91387 on April 16, 2023. Per the process server’s affidavit, the documents were left with “co-occupant” Nav Prit, described as “Male, Indian, 5’9’, 170-180 lbs., 35-40 yrs. Old.”

Defendants submit that they were not residing at the Canyon County address at the time of service. Defendant Kenia states that neither she nor her son, Defendant Jonathan, resided at the Canyon County address at the time of service. (Kenia Decl. ¶ 3.) Kenia further states that she has not lived or resided at the Canyon County address since she moved on July 4, 2021. (Kenia Decl. ¶ 6.) Kenia states that neither she nor her son have ever known or resided with a Nav Prit. (Kenia Decl. ¶ 8.) Kenia states she did not become aware of this action until mid-October of 2023. (Kenia Decl. ¶ 12.) Kenia states that she changed her listed address with the California Department of Motor Vehicles and has not avoided service of process. (Kenia Decl. ¶ 6.)

Kenia’s declaration also states that Defendant Jonathan has not resided at the Canyon County address since at least February of 2022. (Kenia Decl. ¶ 3.) Kenia states that Jonathan has been incarcerated at Pitchess Detention Center South Facility since February of 2022 and continues to reside there. (Kenia Decl. ¶ 3.)  Kenia’s declaration is accompanied by a printout from the Inmate Information Center which confirms Jonathan’s status and date of incarceration. (Kenia Decl. Exh. C.)

Lastly, Defendants present the declaration of the current occupant of the Canyon County address, Navpreet Singh Samra (Samra). Samra states that he resided at the Canyon County address since before April 16, 2023. (Samra Decl. ¶ 2.) Samra states at great length that he does not know who Defendants are and has never been authorized to accept service on their behalf. (Samra Decl. ¶¶ 4-9.) Samra also disputes that he was handed any documents by a process server on April 16, 2023. (Samra Decl. ¶ 3.)

Plaintiff argues in opposition that Defendants’ self-serving declarations are insufficient to defeat the presumption of proper service, citing to Yolo County Dept. of Child Support Services v. Myers. The Court finds this case inapposite. In Yolo, the court was assessing the validity of a self-serving declaration that a child support obligor did not reside at the place of service. (Yolo County Dept. of Child Support Services v. Myers (2016) 248 Cal.App.4th 42.) This declaration was being directly compared to a statement by a Child Support Services Commissioner that determined the obligor did indeed reside at the place of service. (Id. at 49.) Here, there is no evidence proffered by Plaintiff of actual residency aside from the presumption established by the process server. The Court also finds that Defendants’ motion is not supported entirely by a self-serving declaration. Defendant has attached a statement from the actual resident of the service address and proof that Defendant Jonathan was incarcerated at the time of service. The Court finds Defendants have presented sufficient evidence to rebut the presumption of effective service.

The Court also finds Plaintiff’s arguments that Defendants obscured their address to purposefully avoid service to be unavailing. Plaintiff’s arguments are not supported by any evidence of an attempt to obscure Defendants’ address, instead relying on an inference from Defendant Kenia’s failure to disclose her current address in her declaration. The Court finds no support for this presumption, relief under C.C.P. § 473.5 does not require disclosure of a parties current address.

Accordingly, the motion to vacate default judgment and set aside default is GRANTED.

Motion to Quash

Having granted the motion to vacate, the Court must now decide Defendants’ motion to quash.

On a motion to quash service of summons, the plaintiff has the burden of establishing by a preponderance of the evidence the prima facie facts entitling the court to assume jurisdiction, including whether service was in compliance with statutory requirements. (Lebel v Mai (2012) 210 CA4th 1154, 1160.) A court may rely upon the verified declarations of the parties and other competent witnesses. (Buchanan v. Soto (2015) 241 CA4th 1353, 1362.) Authenticated documentary evidence may also constitute competent evidence. (Paneno v Centres for Academic Programmes Abroad, Ltd. (2004) 118 CA4th 1447, 1454.)

As previously discussed, the Court finds the presumption of valid service created by the process server to have been adequately rebutted. Plaintiff presents no other evidence that the service at the Canyon County address was valid.

The Court finds Plaintiff’s argument regarding “substantial compliance” with the service requirements to be unpersuasive. It is clear from the evidence submitted that the address of service was wrong, even if Plaintiff in good faith believed the address was correct. Plaintiff does not state how the address was acquired or make any other statements about the attempt to locate Defendants. The only evidence Plaintiff submits in opposition is the declaration of its counsel and some records regarding Defendant Jonathan. The declaration of Plaintiff’s counsel is silent as to how the address for Defendants was ascertained. (See Moghaddami Decl.) Further, the documents pertaining to Defendant Jonathan’s place of address are dated 2020, three years before alleged service. (See Oppo. pgs. 18-20.)  The Court does not find these showings are evidence of “substantial compliance” with the service statute. As such, the Court finds Plaintiff has not upheld its burden on a motion to quash.

Accordingly, the motion to quash is GRANTED.      

Compensatory Legal Fees

Lastly, the Court declines Plaintiff’s request for what are essentially sanctions. Plaintiff argues that compensatory attorney’s fees are appropriate as a factor of C.C.P. § 473.5 stating relief may be granted under “whatever terms may be just”. The Court finds no basis for Plaintiff’s assertion that it is in the interest of justice to grant Plaintiff attorney’s fees as a condition for vacating the default. It is not within the interest of justice for Plaintiff to recover attorney fees that resulted from his own mistake as to the address for service.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Jonathan Madera & Kenia Madera’s Motion to Vacate and Motion to Quash came on regularly for hearing on March 15, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION TO VACATE DEFAULT JUDGMENT/SET ASIDE DEFAULT IS GRANTED.

THE MOTION TO QUASH SERVICE OF SUMMONS IS GRANTED.

THE COURT SETS AN OSC: RE PROOF OF SERVICE AND A CASE MANAGEMENT CONFERENCE FOR JUNE 26, 2024 AT 9:00 A.M.

UNLESS ALL PARTIES WAIVE NOTICE, PLAINTIFF TO GIVE NOTICE.