Judge: Joseph Lipner, Case: 21STCV26349, Date: 2023-09-07 Tentative Ruling

Case Number: 21STCV26349    Hearing Date: September 7, 2023    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

          Defendant, who was named in plaintiff’s complaint as Wilshire Consumer Credit of Los Angeles, seeks relief from default judgment and to quash service of summons.

Defendant’s motion for relief from default judgment and to quash service of summons is granted.

Background

On July 19, 2021, Plaintiff Fallon Seaborn (“Plaintiff”) sued Defendant Wilshire Consumer Credit of Los Angeles (“Defendant”) for actions that arose out of a purported agreement. Defendant did not answer or otherwise appear in the action. On June 3, 2022, the Court entered default judgment against Defendant.

On March 3, 2023, Defendant moved for relief from default judgment and to quash service of summons. Plaintiff opposed. Defendant replied.

Legal Standard

Relief from Default Judgment

“A summons is the process by which a court acquires personal jurisdiction over a defendant in a civil action’ [citation], and a defendant has an absolute right to demand that process be issued against him in a manner prescribed by law.” (Mannesmann DeMag, Ltd. v. Superior Court¿(1985) 172 Cal.App.3d 1118, 1122.) “Constitutional due process requirements are satisfied where the form of service provided and employed is¿reasonably¿calculated¿to give a litigant actual notice of the proceedings and an opportunity to¿be heard.” (Crescendo Corp. v. Shelted, Inc.¿(1968) 267 Cal.App.2d 209, 213.) “‘[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. [Citation.]’” (Ellard v. Conway¿(2001) 94 Cal.App.4th 540, 544.) The Court may set aside any void judgment or order at any time. (Code Civ. Proc., § 473, subd. (d); Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1249.)  

When considering the facial validity of a judgment, the Court may only consider the contents of the judgment roll. (OC Interior Services, LLC v. Nationstar Mortgage, LLC (2017) 7 Cal.App.5th 1318, 1327.) “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.” (Kremerman v. White (2021) 71 Cal.App.5th 358, 370.) If the judgment is not void on its face, the time limitations of Code of Civil Procedure section 473.5 apply. (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180-81; Schekel v. Resnik (1994) 27 Cal.App.4th Supp. 1, 3-4.)

“When a defendant argues that service of summons did not bring him or her within the trial court's jurisdiction, the plaintiff has ‘the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.’”  (American Exp. Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 387.)

A default judgment is void because the party is misnamed in the complaint, service, and judgment. (See Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 43-44.)

Quash Service of Summons

“A defendant . . . 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. . ..”  (Code Civ. Proc., § 418.10(a).) “When a motion to quash is properly brought, the burden of proof is placed upon the plaintiff to establish the facts of jurisdiction by a preponderance of the evidence.”  (Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 568.)

Requests for Judicial Notice

Defendant requests judicial notice of (1) California Secretary of State Business Search of Wilshire Consumer Credit, (2) Wilshire Commercial Capital LLC’s Articles of Organization, (3) California Credit Consumer of Los Angeles’s Articles of Incorporation, (4) Wilshire Credit Consumer of Los Angeles’s Certificate of Amendment of Articles of Incorporation, (5) Wilshire Consumer Loans LLC’s Articles of Organization, and (6) Wilshire Consumer Loans LLC’s Certificate of Cancellation.

The Court denies Defendant’s requests for judicial notice of (1) California Secretary of State Business Search of Wilshire Consumer Credit, (2) Wilshire Commercial Capital LLLC’s Articles of Organization, (3) California Credit Consumer of Los Angeles’s Articles of Incorporation, (4) Wilshire Credit Consumer of Los Angeles’s Certificate of Amendment of Articles of Incorporation, (5) Wilshire Consumer Loans LLC’s Articles of Organization, and (6) Wilshire Consumer Loans LLC’s Certificate of Cancellation. No authority exists that permits the Court to take judicial notice of a business name search. (Evid. Code, §§ 451, 452.) Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, which Defendant cites, is about the judicial notice of various recorded documents related to a deed of trust, not business entity filings or business name searches. Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 549, which Defendant also cites, is about the judicial notice of recorded deeds. Further, judicial notice of Internet pages of even official entities may be improper absent evidentiary foundation showing the following elements: (1) Author, (2) date of creation, (3) purpose, (4) reliability, and (5) veracity.  (Hartwell Corp. v. Super. Ct. (2002) 27 Cal.4^th 256, 279 n. 12.) Here, Defendant has not provided an evidentiary foundation showing any of the elements.

In addition, no authority exists that permits the Court to take judicial notice of the contents of the Wilshire Commercial Capital LLC’s Articles of Organization, California Credit Consumer of Los Angeles’s Articles of Incorporation, Wilshire Credit Consumer of Los Angeles’s Certificate of Amendment of Articles of Incorporation, Wilshire Consumer Loans LLC’s Articles of Organization, and Wilshire Consumer Loans LLC’s Certificate of Cancellation. While courts may notice public records, courts do not take judicial notice of the truth of all matters stated therein. (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063.)

Discussion

Defendant argues that the proof of service of the summons is invalid because neither Defendant nor its registered agent was ever served with the complaint or other case documents. In support of its argument, Defendant advances the declaration of John Schwartz, Defendant’s senior legal analyst, who states that Defendant does not use “Wilshire Consumer Credit of Los Angeles” as either a legal name or fictitious business name.  Instead, its actual name is “Wilshire Commercial Capital, L.L.C. dba Wilshire Consumer Credit.” (Decl. Schwartz ¶¶ 1-2.)  Plaintiff incorrectly added the words “of Los Angeles” in the phrase “Wilshire Consumer Credit of Los Angeles,” rendering the name of the Defendant incorrect.

Here, according to the proofs of service filed on November 18, 2021, and November 22, 2021, Plaintiff served “Wilshire Consumer Credit of Los Angeles” at 8484 Wilshire Blvd., Suite 255, Beverly Hills, California on September 7, 2021.  Plaintiff did not serve the actual entity, Wilshire Commercial Capital, L.L.C. dba Wilshire Consumer Credit. As discussed above, a default judgment may be void because the party is misnamed in the complaint, service, and judgment. (See Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 43-44.)

Moreover, the proof of service shows service at 8484 Wilshire Boulevard.  Defendant attests to the fact that this is not an address associated with Defendant.

          In opposition, Plaintiff contends that “Wilshire Consumer Credit of Los Angeles” is the legal name or fictitious business name of Defendant. In support of her argument, Plaintiff states that she served Defendant at 8484 Wilshire Blvd., Suite 255, Beverly Hills, California 90211 and 4727 Wilshire Blvd., Suite 100, Los Angeles, California 90010. (Decl. Seaborn ¶ 11.) She does not offer further arguments or evidence regarding the correct name of the Defendant.  

Moreover, Plaintiff’s claim in her briefing that Defendant was also served at 4727 Wilshire Boulevard is not reflected in any proof of service filed prior to obtaining the default.

          Because Plaintiff misnamed Defendant in the summons, and because the Court concludes that Defendant was not served at its actual address, the default judgment is void, and Defendant’s motion for relief from default judgment is granted.  

For the same reason, Defendant’s motion to quash service of summons is granted. Plaintiff argues that the time for moving to quash service of summons has passed because she served Defendant with the summons and complaint on September 7, 2021. (Opposition, pg. 6.) However, even according to Plaintiff “Wilshire Consumer Credit of Los Angeles” was served with the summons and complaint, not Wilshire Commercial Capital, L.L.C. dba Wilshire Consumer Credit. Moreover, the correct Defendant was never served at their actual location. Hence, the time to move to quash service of summons has not passed.