Judge: John C. Gastelum, Case: 21-01227528, Date: 2022-10-05 Tentative Ruling
Motion to Vacate/Set Aside Default and Judgment
Tentative Ruling: Defendant Noella Bergener’s motion to set aside default and default judgment is DENIED.
Defendant moves to set aside the default and default on the grounds that service was wholly defective because it did not comply with Code of Civil Procedure section 415.20 and for lack of actual notice under Code of Civil Procedure section 473.5.
In support of her motion, Defendant submitted her own declaration [ROA 32], which states:
· Until February 15, 2022, Defendant resided at 24 Pelican Crest Drive in Newport Beach.
· Defendant was married to, and resided with, James Bergener (“James”) until July 2021.
· In July 2021, James abruptly and without warning, moved out of the house and filed for divorce. He moved to Puerto Rico.
· On information and belief, James used a mail forwarding service to divert some of the mail from the house to his office or his new residence in Puerto Rico.
· Defendant was not served with the summons and complaint and did not have actual or constructive notice of this action.
· The proof of service states that substitute service was effectuated on a Caucasian female who was 5’11” and 130 pounds. Defendant is mixed race with African American and Caucasian ancestry, but her features are very clearly African American. Defendant is 5’10” and 114 pounds. She cannot reasonably be mistaken for the woman described in the proof of service.
· During the time of service, Defendant’s mother, her 15 years old nephew, and two minor children (ages 2 and 6) resided at the house. Her mother is 5’8”, 170 pounds, and 68 years old. Defendant also employs a nanny that is present in the house. She is 35 years old, 5’2” and 150 pounds.
· No one resided at the home at any time between July 2021 through November 2021 that spoke with a German or European accent.
· Defendant was regularly present at the house throughout November 2021 but was not present on the dates indicated on the proof of service or declaration of due diligence. She was traveling for work during November 2021 but was not out of the country for a month and never instructed anyone to make such statements.
· On January 31, 2022, Defendant became aware of the action as a result of seeing news reports in the media. She then notified her attorney to present this motion.
Under Code of Civil Procedure section 415.20, subdivision (b), “[i]f 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…in the presence of a competent member of the household…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.” “The return of a registered process server ‘establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.’ [Citation.]” (Fernandes v. Singh (2017) 16 Cal.App.5th 932, 940.) “[A] declaration of non-service if credited by the trial court can rebut the presumption of proper service…” (Id., at p. 941, emphasis in original [court declined to credit denial of service, expressly finding declaration to be “unpersuasive”].) On a motion to set aside default and default judgment, “[i]t is the province of the trial court to determine the credibility of the declarants and to weigh the evidence. [Citation.]” (Falahati v. Kondo (2005) 127 Cal.App.4th 823, 828 [court may find a defendant was served with summons and complaint and had actual notice of the proceedings despite the defendant’s denial].) On a motion to set aside default and default judgment, “[i]t is the province of the trial court to determine the credibility of the declarants and to weigh the evidence. [Citation.]” (Falahati v. Kondo (2005) 127 Cal.App.4th 823, 828 [court may find a defendant was served with summons and complaint and had actual notice of the proceedings despite the defendant’s denial].)
Here, the proof of service shows the summons and complaint were served by a registered process server. (ROA 9.) The proof of service shows the process server made five attempts at personal service before resorting to substitute service. It shows compliance with the statutory requirements of section 415.20(b), including the mailing requirement. The person who was sub-served declined to provide a name but was described as “Caucasian, female, 38 years old, 5’11” tall, 130 lbs., brown hair.”
Defendant admits the address in the proof of service was her residence and she was living there during the relevant time period. Defendant described all the persons who lived at, or had access to, the house at the time of service. None of them match the description in the proof of service. Rather, Defendant is the only person in the household at the time of service who matches the person described in the proof of service, as she states she is mixed race with African American and Caucasian ancestry, 5’10” and 114 pounds. Defendant did not provide an explanation as to who could have been the person served, nor state that she did not receive mail at the address.
Defendant’s claim that she was not served and that she did not have knowledge of this action is unconvincing given the circumstances. The court finds Defendant was properly served with the summons and complaint and had actual notice of the proceedings. Therefore, the motion to set aside default and default judgment for failure to comply with that statutory service requirement or lack of actual notice is DENIED.
Plaintiff to give notice of ruling.