Judge: Gregory Keosian, Case: 22STCV35089, Date: 2023-05-08 Tentative Ruling

Case Number: 22STCV35089    Hearing Date: May 8, 2023    Dept: 61

Defendant James Ward’s Motion to Set Aside Default and Default Judgment and to Quash Service of Summons is DENIED.

Plaintiff to give notice.

I.                   MOTION TO SET ASIDE DEFAULT & TO QUASH SERVICE OF SUMMONS

“The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc. § 473, subd. (d).)

Defendant James Ward moves to vacate the entry of default judgment against him and to quash service of process on the grounds that he was not properly served. In a declaration submitted with his motion to quash, he states that he “was supposed to be personally served but instead the complaint/summons was “posted” unbeknownst to me.” (Motion Quash at p. 8.)

The proof of service filed on December 29, 2022, states that Defendant was served by substitute service on December 12, 2022, when the complaint and summons were left with a John Doe at Defendant’s address. The declaration of diligence states that the server thrice attempted to serve Defendant personally, without success, and successfully left the complaint and summons with the John Doe on the fourth attempt.

Substitute service is allowed when personal service cannot be effect by reasonable diligence by leaving the summons and complaint at the “dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge,” and by subsequently mailing a copy of the summons and complaint by first-class mail to the person to be served at the place the summons and complaint were left. (Code Civ. Proc., § 415.20, subd. (b).)

Defendant has not demonstrated improper service. The return of a registered process server creates a presumption of proper service. (Evid. Code § 647.) The proof of service here, accompanied by the server’s declaration of diligence, creates a presumption of prior attempts to make personal service, followed by a successful attempt at substitute service on December 12, 2022, at the same address that Defendant identifies for himself in his moving papers. Defendant’s declaration to the contrary is not made under penalty of perjury (See Code Civ. Proc. § 2015.5) and in any event is so conclusory that it fails to rebut the testimony of the process server.

The motions are DENIED.