Judge: Frank M. Tavelman, Case: 23BBCV00959, Date: 2024-03-29 Tentative Ruling

Case Number: 23BBCV00959    Hearing Date: March 29, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO VACATE/SET ASIDE & MOTION TO QUASH

NOTICE:

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: 

Sean Santoyo (Plaintiff) brings this action against Stephanie Wu (Defendant). Plaintiff suffered serious injury after Defendant struck him with her vehicle. This occurred while Plaintiff was working as a valet and that Plaintiff subsequently suffered serious injury.

On January 4, 2024, default was entered against Defendant, and on March 4, 2024, The Court entered default judgment in favor of Plaintiff.

Defendant now moves to vacate the default judgment and set aside the default arguing that she did not receive actual notice of the lawsuit. Defendant also moves to quash service of the summons in the event relief from default is granted. Plaintiff opposes the motion and Defendant replies.

ANALYSIS: 

I.                    LEGAL STANDARD 

Motion to Vacate Default Judgment

There are three basic avenues of relief for a defendant against whom a default judgment has been entered: first, the party can obtain relief under C.C.P. §473 and 473.5; second, the party can show that extrinsic fraud or mistake exists; and third, the party can show that the default judgment was facially void.  (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 181.)

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.)

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.)

II.                 MERITS

Request for Judicial Notice

Defendant requests judicial notice be taken of (1) the proof of service in this matter, (2) the case information as acquired on March 4, 2024, and (3) the request for entry of default dated January 4, 2024. Defendant asserts that judicial notice of these documents is proper pursuant to Evidence Code § 452, which permits judicial notice of court records. The request is GRANTED.

Plaintiff also requests judicial notice of the proof of service and the request for entry of default dated January 4, 2024. These requests are GRANTED. Plaintiff further requests judicial notice of Cal. Code Regs. Tit. 1, § 1008, which is DENIED.  The Cal. Code of Regs. Applies to administrative hearing and not to the Constitutional Courts of California.

Lastly, Plaintiff requests judicial notice of a letter sent from his counsel to Defendant’s insurance company. Plaintiff does not brief why this document should be judicially noticed. Plaintiff simply states all the documents of which he requests notices are “court documents that are official documents of the California Secretary of State or file in this case.” The Court is unsure what is meant by this statement, though it is clear that the letter from plaintiff’s counsel is not an official court document. Accordingly, judicial notice of the letter is DENIED.

Objections

Plaintiff objects to “Plaintiff's Exhibits Pages: 18-37, Pages 38-41, pages 42-66, Pages 67-81; Pages 82-87; Pages 88-95; Pages 96-100 on the basis of relevancy regarding the Motion to Set Aside the Default and default judgement…”

The Court finds the page numbers cited as objectionable do not track with page numbers of Defendant’s exhibits in support of her motion. Further, although Defendant has labeled her exhibits, Plaintiff’s objection makes no reference to these labels. As stated, the Court is unable to ascertain to what material Plaintiff is objecting. Accordingly, the objections are OVERRULED.

Motion to Vacate/Set Aside

The proof of service in this matter shows substitute service was effectuated on June 11, 2023. The process server’s affidavit reflects that the Summons and Complaint were left with co-occupant Travis Doe, described as a white male around 45 years of age with black hair and standing 5’10’. The address of service, purported to be Defendant’s usual place of abode, was 10639 Woodbridge St. Apt. 104 North Hollywood, CA 91602. The affidavit attests that notice was thereafter mailed to the same address.

Defendant states the grounds for her motion are pursuant to C.C.P. § 473(d), arguing that the default is void by virtue of being obtained by extrinsic fraud. While it may be that Defendant is entitled to relief under C.C.P. § 473(d), the Court finds an extrinsic fraud analysis is unnecessary. This is because Defendant’s primary argument, that she did not receive notice by virtue of defective service, speaks more to relief under C.C.P. § 473.5 than to extrinsic fraud.

Defendant offers her own declaration in support of this motion. Defendant states that she used to reside at the Woodbridge address and that this address appeared on the vehicle registration she exchanged with Plaintiff at the time of the accident. (Wu Decl. ¶ 8.) Defendant states that she never received the Complaint in this matter. (Wu Decl. ¶ 9.) Defendant admits that she is married to a man named Travis, but states that his physical description does not match the proof of service. (Wu Decl. ¶ 9.) Specifically, Defendant states that her husband has light hair not black hair and that he is 35 and not 45. (Wu Decl. ¶ 9.) Defendant further states that she never received notice of the suit by mail, despite her checking the mail regularly. (Wu Decl. ¶ 10.) Defendant states she has not attempted to evade service, as indicated by providing her insurance information to Plaintiff at the time of the accident. (Wu Decl. ¶ 11, Exh. A.)  

Defendant also states that she has since moved from the Woodbridge location. (Wu Decl. ¶ 12.) Defendant states she became aware of this suit because the new residents received a notice in the mail on January 16, 2024. (Wu Decl. ¶ 12, Exh. B.) Defendant states she never received mail related to the suit forwarded to her new address. (Wu Decl. ¶ 12.)

Defendant also submits the declaration of Travis Barner (Barner). Barner states that he lived at the Woodbridge address at the time of alleged service. (Barner Decl. ¶ 2.) Barner states that he has never spoken with or come into contact with a process server for any reason. (Barner Decl. ¶ 2.) Barner also reiterates that he does not fit the description on the proof of service. (Barner Decl. ¶ 3.)

The Court acknowledges the affidavit of Plaintiff’s process server creates a rebuttable presumption that service was valid. (American Express Centurion Bank v. Zara (2011) 199¿Cal.App.4th 383, 390 [internal citation omitted]; Evid. Code § 647.) However, the Court also finds that Defendant has provided adequate evidence in rebuttal of this presumption. Defendant submits the sworn testimony of both herself and her husband that neither of them ever received notice of this suit.

“[A]ctual notice in section 473.5 means genuine knowledge of the party litigant…[A]ctual knowledge has been strictly construed, with the aim of implementing the policy of liberally granting relief so that cases may be resolved on their merits.’” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 547 [Citations Omitted].) Here, Defendant has provided evidence indicating that she did not have actual knowledge of the suit until default was already entered in the matter.

While the Court finds Defendant’s declarations persuasive, it is worth noting that even weak evidentiary showings are entitled to relief under C.C.P. § 473.5. “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…. Even in a case where the showing ... is not strong, or where there is any doubt as to setting aside of a default, such doubt should be resolved in favor of the application.” (Ramos supra, 223 Cal.App.4th at 1444 [internal citation and quotation marks omitted].)

The Court finds Plaintiff’s arguments in opposition to be unpersuasive. Plaintiff asserts in his opposition that Defendant was clearly evading service because she did not provide documentation as to her forwarding address with her moving papers. Plaintiff also suggests that “[Defendant] makes no comment” as to whether she set up mail forwarding when she moved from the Woodbridge address. The Court notes Defendant explicitly mentions mail being forwarded to her new address “I never received any mail relating to this case forwarded to my Westlake address.” (Wu Decl. ¶ 12.) Plaintiff also argues that Defendant must have received notice because she received subsequent notice from her counsel. Again, Defendant clearly addresses that she was sent the subsequent correspondence by the new resident of the Woodbridge address. (See Wu Decl. Exh. B.)

Lastly, the Court finds Plaintiff’s argument that Defendant obviously attempted to evade service because it would raise her insurance premiums to be based purely on conjecture. Plaintiff’s argument is based on a premise for which Plaintiff has offered no evidentiary facts.

In short, the Court finds Defendant has sufficiently shown that she lacked actual notice of this suit. Accordingly, the motion to vacate default judgment and set aside default is GRANTED. Any relief sought on the grounds of extrinsic fraud is MOOT.

Motion to Quash

Having granted the motion to vacate, the Court must now decide Defendant’s 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. Further, the Court does not find that Plaintiff has demonstrated substantial compliance such that jurisdiction has been conferred. “It is axiomatic that strict compliance with the code's provisions for service of process is not required. (Ramos supra, 223 Cal.App.4th at 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.) As already established, Plaintiff’s service was not sufficient to provide actual notice to Defendant.

Accordingly, the motion to quash service is GRANTED.

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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 

Stephanie Wu’s Motion to Vacate and Motion to Quash came on regularly for hearing on March 29, 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.

AN ORDER TO SHOW CAUSE RE: PROOF OF SERVICE AND A CASE MANAGEMENT CONFERENCE ARE SCHEDULED FOR AUGUST 1, 2024 AT 9:00 AM

UNLESS ALL PARTIES WAIVE NOTICE, PLAINTIFF TO GIVE NOTICE.  

IT IS SO ORDERED. 

DATE:  March 29, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles