Judge: Joel L. Lofton, Case: 20GDCV01099, Date: 2024-02-01 Tentative Ruling

Case Number: 20GDCV01099    Hearing Date: February 1, 2024    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:      February 1, 2024                                 TRIAL DATE: April 23, 2024

CASE:                         WORLD OIL MARKETING COMPANY, INC., v. #1 AUTO SERVICE, INC., a California corporation; HUI LI, an individual; TOM VAN CHAU, an individual; NATHAN HERNANDEZ, an individual; and DOES 1 through 20, inclusive.

CASE NO.:                 20GDCV01099

MOTION TO QUASH

MOVING PARTY:               Defendant Nathan Hernandez

RESPONDING PARTY:      Plaintiff World Oil Marketing Company, Inc.

SERVICE:                              Filed December 4, 2023

OPPOSITION:                       Filed January 19, 2024

REPLY:                                   Filed January 25, 2024

RELIEF REQUESTED

             Defendant moves for an order quashing the service of summons, vacating the default and default judgment, and recalling and quashing the writ of execution.

BACKGROUND

             This case arises out of Plaintiff World Oil Marketing Company, Inc. (“Plaintiff”) claim that Defendant #1 Auto Service, Inc. breached a lease agreement for property located at 3 East Duarte Road, Arcadia, California. Plaintiff filed this complaint on December 16, 2020, alleging two causes of action for (1) breach of lease and (2) breach of lease guaranty.

TENTATIVE RULING

            Defendant’s motion to quash service of summons is GRANTED.

            Defendant’s motion to set aside default and default judgment is GRANTED pursuant to Code of Civil Procedure section 472, subdivision (d).

            Defendant’s motion to quash the writ of execution and abstract of judgment is DENIED without prejudice.

LEGAL STANDARD

            “(a) A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: [¶] (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her. [¶] (2) To stay or dismiss the action on the ground of inconvenient forum. [¶] (3) To dismiss the action pursuant to the applicable provisions of Chapter 1.5 (commencing with Section 583.110) of Title 8.” (Code of Civil Procedure section 418.10, subd. (a).)

DISCUSSION

            Plaintiff initially filed this case on December 16, 2020. On October 27, 2021, default was entered against Defendant. Default judgment was entered against Defendant on January 19, 2022. Defendant moves to quash the service of summons based on improper summons.

            Previously, Plaintiff filed a proof of substituted service that provided that Defendant was served at 1134 E. 6th Street, Apartment C in Ontario, California on September 13, 2021. The proof of service provides that the documents were left with a Maribel “Doe”, who is listed as a co-occupant.” In support of this motion, Defendant provides that he moved out of the apartment in April of 2021 when he purchased a home at 17794 Lemon Street, Hesperia, California 92345. (Hernandez Decl. ¶ 4-5.) He provides he was not living at the 6th Street address at the time of purported service, and he does not know who Maribel “Doe” could be. (Id. ¶¶ 3-4.) Defendant also provides an insurance premium notice for the Lemon Street address starting in April of 2021. (Id. ¶ 6, Exhibit A.)

            “When a defendant challenges the court's personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.’ ” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.)

            “If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the person's 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 of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.” (Code Civ. Proc. section 415.20, subd. (b).)

            Defendant asserts that the service of summons should be quashed based on improper service. Code of Civil Procedure section 415.20, subdivision (b), provides that substituted service may be effectuated by leaving the appropriate documents at the “dwelling house, usual place of abode, usual place of business, or usual mailing address”. Here, it appears that the subsisted service was left at a location that was not Defendant’s “dwelling house, usual place of abode, usual place of business, or usual mailing address”. Further, Plaintiff bears the burden of demonstrating effective service. In opposition, Plaintiff only provides that “several months” after service of entry of default, Defendant contacted Plaintiff’s counsel. (Stelzer Decl. ¶ 6.) However, that does not establish effective service.

            Defendant’s motion to quash for lack of valid service is granted. The default and default judgment entered against Defendant are therefore void. “ ‘ “[A] default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. [Citation.]” [Citation.] 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. [Citations.]’ ” (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1200.) Defendant’s motion to set aside default and default judgment is granted pursuant to Code of Civil Procedure section 473, subdivision (d).

            Defendant also moves to set aside writ of execution and the abstract of judgment entered in this case. However, Defendant does not differentiate or specify which orders he seeks quashed or set aside. It would be imprudent to grant a sweeping order quashing all post-judgment orders when the default judgment still stand to other Defendants. Defendant’s motion to quash the writ of execution is denied at this time without prejudice.

CONCLUSION

            Defendant’s motion to quash service of summons is GRANTED.

            Defendant’s motion to set aside default and default judgment is GRANTED pursuant to Code of Civil Procedure section 472, subdivision (d).

            Defendant’s motion to quash the writ of execution and abstract of judgment is DENIED without prejudice.

Dated:   February 1, 2024                                           ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court indicating their

intention to submit.  alhdeptx@lacourt.org