Judge: H. Jay Ford, III, Case: 23SMCV02908, Date: 2024-06-04 Tentative Ruling

Case Number: 23SMCV02908    Hearing Date: June 4, 2024    Dept: O

6-4-24 23SMCV02908 Flood-Cide Motion to Vacate Default

Defendant Helen Mohsenzadeh's Motion to Vacate Default is GRANTED pursuant to CCP § 473(d). Default was entered on 10-24-23. Defendant filed this motion on 4-25-24, and no opposition has been filed as of 5-30-24.  "Under section 473, subdivision (d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service. "(Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1200; See Code Civ. Pro. § 473, subd. (b).) 

The Plaintiff Flood-Cide Restoration & Construction, Inc ("Flood-Cide") provide a proof of service which includes a declaration from the service processer including multitple attempts attempts to serve Defendant at 3314 Van Allen Place, Topanga Canyon, CA 90290 (the "Van Allen Place Address"), the conversation with gate guard at the address, the alleged gate guards phone calls to the residence, and the alleged conversation with Defendant stating to leave the forms with the gate guard. (See Mohsenzadeh Decl., ¶ 6, Ex. A.) The gate guard statements, and the alleged statements by Defendant while on speaker phone, are hearsay without an exception to the hearsay rule (See Evid. Code, § 1200.) Without more foundation these statements are not admissible and do not meet the Plaintiffs burden to prove substitute service. Thus, because there was no effective service of process, the default judgment is void. (see Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444 ["[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction . . . . Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void"].)