Judge: Joel R Wohlfeil, Case: 37-2019-00049994-CU-BC-CTL, Date: 2023-12-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 13, 2023

12/15/2023  09:00:00 AM  C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited  Breach of Contract/Warranty Motion to Dismiss 37-2019-00049994-CU-BC-CTL NAVY FEDERAL CREDIT UNION VS WARREN [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Set Aside Default, 10/30/2023

The Motion (ROA # 38) of Defendant CLARE WARREN ('Defendant') for an order to vacate or set aside the default judgment - ROA # 32 - in favor of Plaintiff NAVY FEDERAL CREDIT UNION ('Plaintiff'), is GRANTED.

Defendant is ordered to file and serve a responsive pleading within twenty (20) days of this hearing.

'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(a).

This Motion was filed on, October 30, 2023. This is more than two years after the default judgment was entered on April 28, 2021. Therefore, relief cannot be afforded via section 473.5.

On the other hand, '[t]he court may, ... on motion of either party after notice to the other party, set aside any void judgment or order.' Code Civ. Proc. 473(d).

The opinion in Kremerman v. White (2021) 71 Cal. App. 5th 358, addressed a section 473(d) Motion as follows: 'The court may ... on motion of either party after notice to the other party, set aside any void judgment or order.' (§ 473, subd. (d).) Generally, defendants have six months from entry of judgment to move to vacate. (Id., subd. (b).) But, if 'the judgment is void on its face, then the six month limit set by section 473 to make other motions to vacate a judgment does not apply.' (National Diversified Services, Inc. v. Bernstein (1985) 168 Cal. App. 3d 410, 414.) 'A judgment or order is said to be void on its face when the invalidity is apparent upon an inspection of the judgment-roll.' ' (Dill v. Berquist Construction Co. (1994) 24 Cal. App. 4th 1426, 1441.) This inquiry, however, 'does not hinge on evidence: A void judgment's invalidity appears on the face of the record.' (Trackman v. Kenney (2010) 187 Cal. App. 4th 175, 181.) The due process clauses of the United States and California Constitutions require that a party be given reasonable notice of a judicial action or proceeding. (In re Marriage of Goddard (2004) 33 Cal. 4th 49, 54.) To establish personal Calendar No.: Event ID:  TENTATIVE RULINGS

3044973 CASE NUMBER: CASE TITLE:  NAVY FEDERAL CREDIT UNION VS WARREN [IMAGED]  37-2019-00049994-CU-BC-CTL jurisdiction, compliance with statutory procedures for service of process is essential; if a default judgment was entered against a defendant who was not served with a summons as required by statute, the judgment is void, as the court lacked jurisdiction in a fundamental sense over the party and lacked authority to enter judgment. (OC Interior Services, LLC v. Nationstar Mortgage, LLC (2017) 7 Cal. App. 5th 1318, 1330, 1331.) To determine 'whether an order [or judgment] is void for purposes of section 473, subdivision (d), courts distinguish between orders [or judgments] that are void on the face of the record and orders [or judgments] that appear valid on the face of the record but are shown to be invalid through consideration of extrinsic evidence. 'This distinction may be important in a particular case because it impacts the procedural mechanism available to attack the judgment [or order], when the judgment [or order] may be attacked, and how the party challenging the judgment [or order] proves that the judgment is void.' ' (Pittman, supra, 20 Cal. App. 5th at p. 1020.) A judgment 'is considered void on its face only when the invalidity is apparent from an inspection of the judgment roll or court record without consideration of extrinsic evidence.' (Id. at p. 1021.) When a default judgment has been taken, the judgment roll consists of 'the summons, with the affidavit or proof of service; the complaint; the request for entry of default ..., and a copy of the judgment.' (§ 670, subd. (a).) If the invalidity can be shown only through consideration of extrinsic evidence, such as declarations or testimony, the order/judgment is not void on its face.

(Pittman, at p. 1021.) ....

As indicated, White's motion to set aside the default and default judgment and vacate the resulting levy of her funds was brought pursuant to section 473, subdivision (d). White contends 'an independent review of the record demonstrates that respondent failed to comply with statutory service requirements ... and that respondent's one attempt at substitute service was fatally defective.' She contends substitute service under section 415.20 was not properly completed as the PostalAnnex address was not her home or dwelling place, nor her usual place of business. White argues the trial court therefore 'lacked jurisdiction to enter a default judgment against [White] and lacked jurisdiction to order the release of levied funds by the sheriff to respondent.

We agree. This is an issue of fundamental jurisdiction. By merely looking at the judgment roll, including Kremerman's complaint, the nonservice reports, and proof of service of summons by substituted service, we conclude the trial court acted without authority in entering judgment against White.

[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.] Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.' (Dill, supra, 24 Cal. App. 4th at p. 1444.) As mentioned above, 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.' (Ellard v. Conway (2001) 94 Cal. App. 4th 540, 544.)' Id. at 369 - 371 (emphasis added).

'If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served ..., 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 ..., 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.' Code Civ. Proc. 415.20(b).

It is crucial that a connection be shown between the address at which substituted service is effectuated and the party alleged to be served. Corcoran v. Arouh (1994) 24 Cal. App. 4th 310, 315.

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3044973 CASE NUMBER: CASE TITLE:  NAVY FEDERAL CREDIT UNION VS WARREN [IMAGED]  37-2019-00049994-CU-BC-CTL The Proof of Service (ROA # 15) lists substitute service at the following address: 2230 Lake Park Drive, # 176, San Jacinto, CA 92583. However, this Court's review of the judgment roll documents finds no indication or evidence that this address was Defendant's dwelling house, usual place of abode, usual place of business or usual mailing address. The documents attached to the Complaint note an address on Birkdale Road in Sun City, and an apartment located on 'Ennyson Street in San Diego (this may, in fact, be 'Tennyson' Street). The October 3, 2019 declaration of non-service lists the Tennyson Street address. The October 30, 2019 declaration of non-service lists an address on Stylus Drive in San Diego. The November 25, 2019 declaration of non-service lists an address on Via Capri in La Jolla (San Diego). The January 8, 2020 declaration of non-service lists a second address on Tennyson Street in San Diego.

The Proof of Service does not include any information as to how or why the process server believed Defendant was living at the Lake Park Drive address, or was receiving mail at this address. For example, there is no indication that a private investigator conducted a search to locate this address. The request for entry of default and the default judgment were both mail served to the Lake Park Drive address.

As discussed above, the judgment roll documents indicate that substitute service was not properly effectuated. Thus, default judgment was entered against a defendant who was not served with a summons as required by statute, personal jurisdiction did not attach, and the resulting judgment is void per section 473(d).

The Court sets a Case Management Conference on Friday February 2, 2024 at 2:45 PM in D 73.

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