Judge: Gary I. Micon, Case: 20CHCV00500, Date: 2024-04-12 Tentative Ruling

Case Number: 20CHCV00500    Hearing Date: April 12, 2024    Dept: F43

Dept. F43

Date: 4-12-24

Case #20CHCV00500, Strategic Funding Source, Inc. vs. Sunset Pools Custom Design, Inc., et al.

Trial Date: N/A

MOTION TO QUASH SERVICE OF SUMMONS, ETC.

MOVING PARTY: Defendant Guy Vaughn

RESPONDING PARTY: Plaintiff Strategic Funding Source, Inc., d/b/a Kapitus

RELIEF REQUESTED

Defendant has requested that the Court quash the service of summons; vacate and set aside the default judgment against him; recall and quash writs of execution and abstracts of judgment and return of funds levied; and dismiss the action

RULING: Motion is denied.

SUMMARY OF ACTION

This is a breach of contract case filed on August 26, 2020. Default judgment was entered against Defendants Guy Vaughn (Vaughn) and Sunset Pools Custom Design, Inc., on November 25, 2020. Vaughn claims that he did not become aware of the judgment against him until he applied for a home loan in September 2023. Plaintiff Strategic Funding Source, Inc. (Plaintiff) claims that it mailed notices of the default to Vaughn at his admitted residence in October 2020 and November 2020, and he does not deny receiving these notices. Furthermore, Vaughn claims that he discovered the default in September 2023, but he did not file his motion to quash service of summons until March 8, 2024.

Plaintiff personally served Vaughn via registered process served on September 5, 2020, at 9:58 a.m. (Paulette Sands Decl., Ex. 1.) Paulette Sands, the process server who served Vaughn, represents that she served an individual who identified himself as Guy Vaughn at Vaughn’s address on the date and time in question. (Sand Decl., ¶ 4.) Vaughn argues in his motion that she could not have served him at that date and time because he was at a meeting for football coaches and volunteers at West Ranch High School starting at 9 a.m. on September 5. (Vaughn Decl.) Vaughn also provided the declaration of the head football coach of that high school team indicating that Vaughn was at the meeting from 9 a.m. to 11 a.m. that day. (Varner Decl., ¶ 4.) In a notice of errata filed on March 19, 2024, Vaughn included the Exhibit A for both declarations, purportedly the football team’s schedule from 2020 showing that there was a meeting on September 5.

ANALYSIS

Vaughn argues that the motion to quash service of summons should be granted because he has provided evidence that he was not home at the alleged time of service. Next, he argues that if the Court quashes the service of summons, then the judgment is not valid and should be set aside and the Court should recall and quash the Abstract of Judgment. Finally, he requests that the action be dismissed because service was not timely

Plaintiff argues in its opposition that a valid return of service of service creates a rebuttable presumption of proper service of summons. Next, Plaintiff argues that Vaughn’s motion is untimely both to quash the service of summons and to vacate the default. Finally, Plaintiff argues that there is no credible, admissible evidence supporting the invocation of the Court’s inherent equitable powers.

Vaughn argues in reply that Plaintiff’s evidence of service of process has been rebutted via the two declarations that he provided. Next, Vaughn argues that allowing the default to stand would deprive Vaughn of his due process rights. He also argues that default without proper service is void.

The Court is not convinced by Vaughn’s argument that he has rebutted the presumption of a proper service of summons. The return of process is prima facie evidence of proper service. (Los Angeles v. Morgan (1951) 105 Cal.2d 726, 731.) The proof of service filed by Plaintiffs conforms with the requirements of CCP §§ 415.10 and 417.10 and is facially valid. The address at which Vaughn was allegedly served is admittedly his home. (Motion at p. 5.)

The evidence which Vaughn has submitted to show that he was not at home consists of his own declaration, the declaration of the head football coach, and a calendar with a date stamp of March 19, 2024, in the upper left corner (the date that the notice of errata was filed). This evidence does not appear to be strong enough to rebut the presumption of proper service of summons. First, Vaughn could not authenticate the calendar himself, as he did not create it. Next, Varner’s authentication of the calendar just states that he created the calendar at the time. (Varner Decl., ¶ 5.) Even assuming that the calendar is true and accurate, this is not proof that Vaughn attended the meeting or that the meeting took place on the date and time specified. In other words, this is likely not sufficient proof to rebut the primate facie evidence of proof of service. However, Vaughn’s motion can certainly be denied on timeliness grounds, as discussed below.

To the extent that Vaughn is requesting that the judgment be set aside, the time for filing such a request would have been within six months of the entry of judgment, as the judgment was not invalid on its face. (See CCP § 473(b), (d).) “In determining whether an order is void for purposes of [CCP § 473(d)], courts distinguish between orders that are void on the face of the record and orders that appear valid on the face of the record but are shown to be invalid through consideration of extrinsic evidence.” (Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1020.) Vaughn has not shown that the judgment was invalid on its face or invalid through extrinsic evidence. Judgment was entered in 2020, so the six months have more than passed.

Even if the Court found that the service of summons was invalid, California courts have acknowledged the two-year limitation period for a motion for relief from a default judgment that is alleged to be void for lack of valid service of process from CCP § 473.5. (Gibble v. Car–Lene Research, Inc. (1998) 67 Cal.App.4th 295, 301, fn. 3, citing Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1120-1124 [where a motion to vacate is made on the ground that the default judgment is void because of improper service, the two-year limitation period contained in section 473.5 (motion to set aside default and defend action where service of summons has not resulted in actual notice) applies by analogy].) Judgment in this case was entered in 2020. The two-year limitation would have been up in 2022. This motion was not filed until March 2024. It is clearly untimely under those cases.

If the Court had found that there was extrinsic fraud in the service of summons, Vaughn cites Munoz v. Lopez (1969) 275 Cal.App.2d 178 in support of his contention that the time limits do not apply if there was extrinsic fraud in the service of summons. First, Vaughn has not provided solid proof there was extrinsic fraud in the service of summons. Secondly, the Munoz court actually stated that the “time limit for the filing of such a motion or separate suit is a reasonable time from discovery of the default judgment irrespective of when it may actually have been entered.” (Id. at 181.) Vaughn waited six months from the alleged time of discovery in September 2023 to the filing of this motion in March 2024. That does not appear to be a reasonable amount of time given the urgent nature of discovering that a default had been entered against him.

Furthermore, Vaughn has not made a showing of a meritorious defense as required by case law. (See Stiles v. Wallis (1983) 147 Cal.App.3d 1143, 1147–1148 [extrinsic mistake case]; In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1071 [applying Stiles factors in extrinsic fraud case].) This is expanded upon in Rodriguez v. Cho (2015) 236 Cal.App.4th 742, which highlights three elements for relief. “[T]he party seeking equitable relief on the grounds of extrinsic fraud or mistake must show three elements: (1) a meritorious defense; (2) a satisfactory excuse for not presenting a defense in the first place; and (3) diligence in seeking to set aside the default judgment once discovered.” (Id. at 750.)

For the first element, Vaughn simply stated that “I have a meritorious defense to this action because it [sic] is not liable to Plaintiff for the sum sought in this case.” (Vaughn Decl., ¶ 10.) This is not sufficient. Defendant also cites Peralta v. Heights Med. Ctr. (1988) 485 U.S. 80, 84-85 in support of his argument that he does not need a meritorious defense. However, this case is inapposite because it was a federal case applying Texas law, and it only stated that a judgment that is entered without notice or services violates the federal Due Process Clause.

Vaughn also failed to show diligence in seeking to set aside the default judgment because he discovered it in September 2023 and did not file this motion until March 2024.

Based on the foregoing, Vaughn’s motion is denied because it was untimely, and even if he had made a showing of extrinsic fraud, he has not made a showing that he had a meritorious defense or acted with diligence in getting it set aside.

Moving party to give notice.