Judge: Katherine Chilton, Case: 19STLC02363, Date: 2022-10-06 Tentative Ruling

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Case Number: 19STLC02363     Hearing Date: October 6, 2022    Dept: 25

PROCEEDINGS:      MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT; QUASH SERVICE OF SUMMONS

MOVING PARTY:   Defendant Andrea Hayley Butler

RESP. PARTY:         Plaintiff Geico General Insurance Co.

MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT;

QUASH SERVICE OF SUMMONS

(CCP §§ 473, 473.5, 418.10)

TENTATIVE RULING:

Defendant Andrea Hayley Butler’s Motion to Vacate Default and Default Judgment and Quash Service of Summons is DENIED.

SERVICE: 

[X] Proof of Service Timely Filed (CRC, rule 3.1300)                 OK

[X] Correct Address (CCP §§ 1013, 1013a)                                                 OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     OK

OPPOSITION:          Filed on September 13, 2022.                           [   ] Late                      [   ] None

REPLY:                     Filed on September 29, 2022.                           [   ] Late                      [   ] None

ANALYSIS:

I.                Background

On March 7, 2019, Plaintiff Geico General Insurance Company (“Plaintiff”) filed an action against Defendant Andrea Hayley Butler (“Defendant”) for subrogation arising out of an alleged motor vehicle accident on January 18, 2018, between Defendant, on the one hand, and an individual insured by Plaintiff’s automobile policy, on the other hand.

On June 25, 2019, Plaintiff filed a Proof of Service by Substituted Service, indicating that the Complaint, Summons, and other pertinent documents were left with “Jorge Morales” at the front desk at 439 North Canon Drive, Beverly Hills, CA 90210 on June 7, 2019, at 12:49 PM.  (6-25-19 Proof of Service.)  The documents were also mailed to Defendant at this address and a Declaration of Due Diligence was attached.  (Ibid.)

            On July 24, 2019, pursuant to Plaintiff’s request, default was entered against Defendant.      (7-24-19 Request for Entry of Default/Judgment.)  Subsequently, on September 12, 2019, default judgment was entered for Plaintiff and against Defendant for $14,074.39.  (9-12-19 Default Judgment.)

            On July 10, 2020, Plaintiff filed a Certificate of Facts Re Unsatisfied Judgment.

On September 6, 2022, Defendant filed the instant Motion to Vacate Default and Default Judgment and Quash Service of Summons (“the Motion”).  Plaintiff filed an Opposition on September 13, 2022.  Defendant filed a Reply on September 29, 2022.

II.              Legal Standard & Discussion

“Evidence Code section 647 provides that a registered process server’s declaration of service establishes a presumption affecting the burden of producing evidence of the facts stated in the declaration.  [Citation.]”  (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; Evid. Code § 647.)

On June 25, 2019, Plaintiff filed Proof of Service by Substituted Service, indicating that a registered California process server, Ernesto Ardon, attempted to serve Defendant personally at her place of business, 439 North Canon Drive, Beverly Hills, CA 90210 on three separate occasions on June 4, 5, and 7, 2019.  (6-25-19 Proof of Service.)  As Defendant was not physically at the location, on June 7, 2022, the process server left the Summons, Complaint, and other pertinent documents with “Jorge Morales” at the front desk at 439 North Canon Drive, Beverly Hills, CA 90210.  (Ibid.)  On the same day, documents were also mailed to Defendant at this address.  (Ibid.)

Defendant states that she was not validly served and had no “actual or constructive knowledge of the action in that she neither resided at the place of alleged ‘due diligence’ service attempts, nor was ever employed at the business place” where she was served.  (Mot. p. 2.)

First, Defendant argues that the process server allegedly attempted to serve her at her purported home address at “11942 Darlington Avenue, Los Angeles, CA, beginning in March of 2019.”  (Butler Decl. ¶ 3(a).)  Defendant provides the addresses where she has resided since December 2018 and indicates that she had already moved out of the 11942 Darlington address in December 2018 and was never informed that anyone attempted to serve her at this address.  (Ibid.)  The Court notes that the Proof of Service filed with the Court does not contain any indication that the process server attempted to serve her at the 11942 Darlington address.  However, a Proof of Service attached to Declaration of Interest, Costs and Attorney Fees, filed on August 23, 2019, demonstrates that attempts were made to serve Defendant at the 11942 Darlington address in March and April, 2019.

Second, regarding service at a business address located at 439 North Canon Drive, Beverly Hills, CA 90210, Defendant states that she “does not now, nor on or about June 4-7, 2019, nor has she ever had any manner of association, employment, or affiliation of any kind with the business.”  (Butler Decl. ¶ 3(b); Mot. p. 5.)  She explains that in June 2019, she was independently employed by a professional realtor, Robert E. Howell Inc. and the address for the employer was 11771 Canton Place, Studio City, CA 91604, the address listed on her 2019 W-2 form.  (Butler Decl. ¶ 3(b), 9-14-22 Butler Decl. ¶ 3(b), Ex. A.)  Even then, she “mostly worked out in the field.”  (Butler Decl. ¶ 3(b).). Defendant learned about the court case in late 2021, after her mother received a letter regarding potential suspension of her driver’s license due to an unpaid court judgment and after learning of the judgment, she hired an attorney and began to investigate.  (Ibid. at ¶ 4.)

Plaintiff opposes the Motion, arguing that Defendant has not presented any facts or evidence to prove that she was not validly served.  (Oppos. pp. 1-2.)  Plaintiff submits proof that the business address for Robert E. Howell Group, Defendant’s employer, is 439 North Canon Drive, Beverly Hills, CA, and Defendant was employed at this address.  (Ibid. at pp. 3-4; Paulus Decl. ¶ 4, Exs. 1-2.)  Although Defendant indicates that she has no affiliation or association with the business address where Plaintiff’s process server left the papers, Plaintiff submits a copy of web search results listing Defendant’s business address at Canon Drive.  (Paulus Decl. ¶ 5, Ex. 2.)  The Court notes the search results were obtained on September 12, 2022, as indicated on the documents, and do not provide proof regarding Defendant’s employer in June 2019.  (Ibid.)  Furthermore, Plaintiff states that Defendant had notice of the action in the of fall of 2021 because she was notified by the DMV regarding the potential suspension of her driver’s license.  (Mot. pp. 4-5; Paulus Decl. ¶ 6.)  Plaintiff also argues that Defendant’s Motion is untimely as it was filed “just short of 36 months after judgment was entered and notice given and approximately 13 months after the Order of Suspension was served by the DMV.”  (Mot. p. 5; Paulus Decl. ¶ 7.)

In her Reply, Defendant clarifies that she was never affiliated with the address “as of that time” that substitute service took place.  (Reply Butler Decl. ¶ 2.)  She states that in all of June 2019, she was independently employed by a professional realtor, Robert E. Howell Inc., located at 11771 Canton Place, Studio City, CA 91604, as listed on her W-2 form, and “worked directly for Mr. Howell based in Studio City as his assistant working mainly in the field.”  (Ibid.)  While her employer had an affiliation with Keller Williams, located at 439 North Canon Drive, Beverly Hills, through “Robert Howell Group,” she was not associated with any real estate brokerage at the time.  (Ibid. at ¶ 3.)  She later became affiliated with the brokerage from October 2020 and October 2021 and has submitted a copy of an Independent Contractor Agreement dated October 1, 2020.  (Ibid., Ex. B.)

Furthermore, Defendant learned about the judgment in late 2021 having received the letter from the DMV; however, “the DMV information did not provided [sic] [her] with information to be able to find why, when, or where the supposed court judgment against [her] came from — only that one existed.”  (Ibid. at ¶ 4.)  It took Defendant months to connect to someone at the DMV, due to COVID-restrictions and short staffing, and it was not until late-March that Defendant learned about the actual case in front of the Los Angeles Superior Court.  (Ibid. at ¶ 5.)

Finally, Defendant objects to the evidence submitted in support of Plaintiff’s Opposition to the Motion for lack of foundation, hearsay, and irrelevance.  (Reply pp. 5-6.)  Plaintiff’s Objection is overruled.

Defendant seeks to set aside default and default judgment and quash service of summons pursuant to Code of Civil Procedure §§ 418.10, 415.10, and 473.  Default and default judgment may be set aside pursuant to Code of Civil Procedure §473(b) and 473.5.  Defendant may move to quash service of summons pursuant to Code of Civil Procedure § 418.10.

A.    Motion to Set Aside Default and Default Judgment

Pursuant to Code of Civil Procedure §473(b), both discretionary and mandatory relief from judgment is available to parties.  Discretionary relief is available under the statute as “the court may, upon any terms as may be just, relieve a party or his or her legal representative from judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.  (Code of Civ. Proc. § 473(b).)  Alternatively, mandatory relief is available when “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.”  (Ibid.)  Under this statute, an application for discretionary or mandatory relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought.  (Code Civ. Proc., § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)  “‘[W]hen relief under section 473¿is¿available, there is a strong¿public¿policy¿in¿favor¿of granting relief and allowing the requesting party his or her day in court…[Citation.]” (Rappleyea v. Campbell¿(1994) 8 Cal. 4th 975, 981-82.)

Alternatively, Courts may set aside a default or default judgment due to lack of actual notice.  Code of Civil Procedure § 473.5 states:

“(a) 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.

(b) A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.

(c) Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.”

Additionally, “[a] summons is the process by which a court acquires personal jurisdiction over a defendant in a civil action.  The form of a summons is prescribed by law, and this form must be substantially observed.  [Citation.]  Service of a substantially defective summons does not confer jurisdiction over a party [citation] and will not support a default judgment.  [Citation.]”  (MJS Enterprises, Inc. v. Superior Court (1984) 153 Cal.App.3d 555, 557.)  “Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.’ [Citation.]”  (Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 858.)  The trial court may set aside any void judgment or order at any time. (Code Civ. Proc., § 473(d).)

Whether relief is requested through Code of Civil Procedure § 473 or § 473.5, Defendant’s Motion is not timely.  The Motion was filed on September 6, 2022, nearly three years after entry of Default Judgment on September 12, 2019.  (Mot.; 9-12-19 Default Judgment.)

Initially, Defendant states that “by around mid-November [of 2021] [she] eventually learned details of this court case.”  (Butler Decl. ¶ 4.)  In her Reply, Defendant states that “[i]t was not until late-March of this year [2022] that we finally learned of the actual case name to be able to look up the actual case.”  (Reply Butler Decl. ¶ 5.)  Even if Defendant did not have notice regarding the case at the time default judgment was entered, the instant Motion was filed on September 6, 2022, at least five, and possibly nine, months after Defendant discovered the judgment.

Finally, “even where relief is no longer available under statutory provisions, a trial court generally retains the inherent power to vacate a default judgment…where a party establishes that the judgment or order was void for lack of due process or resulted from extrinsic fraud or mistake.” (County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1228; Bacon v. Bacon (1907) 150 Cal. 477, 491-92; Olivera v. Grace, 122 P.2d 564, 567-68; Stiles v. Wallis (1983) 147 Cal.App.3d 1143, 1147 (“There are four grounds which a court, utilizing its equity capacity may rely upon to provide relief from default.  Those areas are (1) void judgment, (2) extrinsic fraud, (3) constructive service, and (4) extrinsic mistake.”)  In limited civil cases, grounds for equitable relief also include “inadvertence or excusable neglect.”  (Code of Civ. Proc. § 86(b)(3).)

Defendant has not demonstrated that she is entitled to relief based on any of these grounds.

For this reason, Defendant’s Motion to Vacate Default and Default Judgment is DENIED.

B.    Quash Service of Process

“‘Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.’ [Citation.]”  (AO Alfa-Bank v. Yakovlev (2018) 21 Cal.App.5th 189, 202.)  “To establish personal jurisdiction, compliance with statutory procedures for service of process is essential.”  (Kremerman v. White (2021). 71 Cal.App.5th 358, 371.)  Defendant’s knowledge of the action does not dispense with statutory requirements for service of summons.  (Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466.)

            “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 move “to quash service of summons on the ground of lack of jurisdiction of the court over him or her” that results from lack of proper service.  (Code of Civ. Proc. § 418.10(a)(1).  A defendant has 30 days after the service of the summons to file a responsive pleading.  (Code Civ. Proc., § 412.20(a)(3).)

            “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.)  As previously stated, a proof of service containing a declaration from a registered process server invokes a presumption of valid service.  The  Court finds that Defendant has not overcome this presumption.

            Accordingly, Defendant’s Motion to Quash Service of Summons is also DENIED.

IV.           Conclusion & Order

For the foregoing reasons,

Defendant Andrea Hayley Butler’s Motion to Vacate Default and Default Judgment and Quash Service of Summons is DENIED.

Moving party is ordered to give notice.