Judge: Gregory Keosian, Case: 22STCV19535, Date: 2023-11-15 Tentative Ruling

Case Number: 22STCV19535    Hearing Date: February 28, 2024    Dept: 61

I.                   MOTION FOR RELIEF FROM DEFAULT

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.

(Code Civ. Proc. § 473.5, subd. (a).)

Defendant Helio Marquez seeks relief from the default and default judgment entered respectively on October 20 and 21, 2022, on the grounds that service was not properly made against him, and he lacked notice of this litigation until September 2023. (Marquez Decl. ¶ 8.) Marquez also claims that substitute service was made on 5007 Eagle View Circle in Los Angeles, which is not his business or residence address. (Marquez Decl. ¶¶ 3–6.)

A defendant may serve and file a motion to quash service of summons on the grounds of a lack of jurisdiction over him or her. (Code Civ. Proc., § 418.10 subd. (a)(1).) A plaintiff opposing a motion to quash service for lack of personal jurisdiction “has the initial burden to demonstrate facts establishing a basis for personal jurisdiction.” (HealthMarkets, Inc. v. Superior Court (2009) 171 Cal.App.4th 1160, 1167.) If satisfied, the burden then shifts to defendant to show that exercise of jurisdiction would be unreasonable. (Id.)

Mere notice of litigation does not confer personal jurisdiction absent substantial compliance with the statutory requirements for service of summons. (MJS Enterprises, Inc. v. Superior Court (1984) 153 Cal.App.3d 555, 557.) While courts are not required to accept self-serving evidence — such as declarations that one was not served — submitted to support a motion to quash, facial defects of the proof of service will rebut its presumption of proper service. (American Exp. Centurion Bank, supra, 199 Cal.App.4th at p. 390.) The burden is on a plaintiff to prove facts showing that service was effective. (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.)

Here, Defendant has presented evidence that he lacked notice of the litigation, and that the substitute service alleged against him was not made upon his “dwelling house, usual place of abode, usual place of business, or usual mailing address,” as required by Code of Civil Procedure § 415.20, subd. (b). No opposition has been filed.

The motion to vacate default judgment and quash service of summons is therefore GRANTED.