Judge: Gary Y. Tanaka, Case: 21TRCV00341, Date: 2022-09-12 Tentative Ruling
Case Number: 21TRCV00341 Hearing Date: September 12, 2022 Dept: B
LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT
Honorable Gary Y. Tanaka Monday, September 12, 2022
Department B Calendar No. 5
PROCEEDINGS
Justin Fiaschetti v. Laura Christine, et al.
21TRCV00341
Laura Christine’s Motion to Set Aside Default and Default Judgment and to Quash Service of Summons and Complaint
TENTATIVE RULING
Laura Christine’s Motion to Set Aside Default and Default Judgment and to Quash Service of Summons and Complaint is granted.
Background
Plaintiff filed his Complaint on May 4, 2021. Plaintiff alleges the following facts. On or about August 7, 2020, Plaintiff entered into a rental agreement with Defendant who owns the property located at 416 Virginia Street, El Segundo, California 90245. At the end of the lease term, Defendant failed to refund the security deposit. Plaintiff alleges the following causes of action: 1. Bad Faith Retention of Security Deposit (Cal. Civil Code § 1950.5); 2. Conversion. On December 15, 2021, default was entered against Defendant Laura Christine.
Motion to Set Aside Default
CCP § 473(b) states, in relevant part: “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. . . . Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. . . .”
CCP § 473.5(a) states, in relevant part: “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. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.”
CCP § 473.5(b) states: “A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by 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. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.” The phrase “actual notice” means “genuine knowledge of the party litigant” and does not include constructive or imputed notice to the client. Tunis v. Barrow (1986) 184 Cal.App.3d 1069, 1077.
Defendant moves for an order to set aside and vacate the entry of default and default judgment pursuant to Code of Civil Procedure section 473.5. The motion is brought on the ground that the service of the summons and complaint did not result in actual notice to Defendant, in time to defend this action. First, no default judgment has been entered in this action. That portion of the motion is moot.
The motion to set aside the entry of default is granted. Defendant has provided facts to demonstrate that she was not served properly with the summons and complaint and did not receive notice in time to defend this action. Defendant states that, since August 1, 2020, she resides at 2613 Mission Blvd. #8, San Diego CA 92109 and this information is clearly reflected in the lease agreement. Defendant states that no one at 416 Virginia Street, El Segundo, California 90245 saw or spoke with any person acting as a process server on October 28, 2021. Defendant states that there is no one at the property who matches the description of the person identified in the proof of service. Finally, Defendant states that she never received a mailed copy of the summons and complaint. (Decl., Laura Christine, ¶¶ 3-6.)
Therefore, the motion to set aside entry of default is granted and the entry of default is hereby set aside.
Motion to Quash
“In the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court’s personal jurisdiction over a defendant.” Dill v. Berquist Const. Co., Inc. (1994) 24 Cal.App.4th 1426, 1439. “A party cannot be properly joined unless served with the summons and complaint; notice does not substitute for proper service. Until statutory requirements are satisfied, the court lacks jurisdiction over a defendant.” Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808. “Service of a substantially defective summons does not confer jurisdiction over a party and will not support a default judgment. Notice of the litigation does not confer personal jurisdiction absent substantial compliance with the statutory requirements for service of summons.” MJS Enterprises, Inc. v. Super. Ct. (1984) 153 Cal.App.3d 555, 557 (internal citations omitted). “When a defendant challenges [the court’s] jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.” Dill v. Berquist Const. Co., Inc. (1994) 24 Cal.App.4th 1426, 1439-40. A motion to quash service of the summons and complaint may be filed in conjunction with a motion to set aside the default. CCP § 418.10(d).
Defendant moves to quash service of the summons and complaint on the ground that Defendant was not properly served with the summons and complaint. The same facts noted above also supports the motion to quash service of the summons and complaint.
Defendant’s motion to quash service of summons and complaint is granted.
Defendant is ordered to give notice of this ruling.