Judge Katherine Chilton, Case 19STLC05992 2022-09-12 Tentative Ruling

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MOTION TO VACATE DEFAULT JUDGMENT; QUASH SERVICE OF SUMMONS; DISMISS COMPLAINT

Defendant Kinetic Freight Logistics’ Motion to Vacate Default and Default Judgment is GRANTED.

Defendant Kinetic Freight Logistics’ Motion to Quash Service of Summons is GRANTED. Further, because Defendant was not served with the Summons and Complaint within three years of the action being commenced, it is DISMISSED pursuant to Code of Civil Procedure § 583.210.

On June 26, 2019, Plaintiff Hector Perez (“Plaintiff”), in propria persona, filed an action against Defendant Kinetic Freight Logistics (“Defendant”) for open account, common counts, and account stated. On January 25, 2021, Plaintiff filed Proof of Personal Service showing that Defendant had been served on October 16, 2020, by personal service to its agent for service of process. (1-25-21 Proof of Service.)

On February 5, 2021, based on Plaintiff’s Request for Entry of Default, default was entered against Defendant. (2-5-22 Request for Entry of Default.) On July 7, 2021, at the Hearing for Order to Show Cause Re: Entry of Default and Default Judgment, the Court dismissed the Complaint without prejudice because neither party was present at the hearing. (7-7-21 Minute Order.)

On December 30, 2021, Plaintiff filed a Motion to Set Aside Dismissal. The Court granted Plaintiff’s Motion on February 2, 2022, and vacated the dismissal. (2-2-22 Minute Order.)

On February 7, 2022, Plaintiff filed a Request for Entry of Default/Judgment and Default Judgment was entered against Defendant on March 15, 2022. (3-15-22 Default Judgment.)

On August 12, 2022, Defendant filed the instant Motion to Set Aside Default and Default Judgment, Quash Service of Summons, and Dismiss for Failure to Serve Complaint Within Three Years (the “Motion”).

No opposition was filed. On August 30, 2022, Defendant filed a Notice of Non-Opposition to the Motion.

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).)

Defendant’s Motion is timely, having been filed within two years after default judgment was entered on March 15, 2022, or within 180 days of discovering the lawsuit. (Mot.; 3-15-22 Default Judgment.)

Defendant seeks to set aside default and default judgment stating that it was never served with the Summons and Complaint. (Mot. p. 2.) Defendant submits the declaration of Avetis Yetenekyan, Agent for Service of Process, Chief Executive Officer, Chief Financial Officer, Secretary and Director, in support of its Motion. (Yetenekyan Decl. ¶ 3.) Yetenekyan states that, at the relevant time, he has been the Agent for Service of Process and the correct address for service is “1781 Atchison St., Pasadena, CA 91104.” (Yetenekyan Decl. ¶¶ 3-4; Ex. A – Statement of Information from California Secretary of State.) The Statement of Information from the California Secretary of State shows that the document was filed on October 13, 2020. (Ibid.) The Proof of Service filed with the Court indicates that the Summons and Complaint were served on Paul Pogosyan at “5756 West Avenue J14, Lancaster, 93536” on October 16, 2020. (Yetenekyan Decl. ¶ 6; 1-25-21 Proof of Service.) Yetenekyan states that “[a]t all relevant times herein,” Paul Pogosyan was not an employee or person authorized to accept service on Defendant’s behalf. (Yetenekyan Decl. ¶ 7.) Moreover, the address in Lancaster, CA, listed on the Proof of Service, was not the address for mailing, agent for service of process, or principal place of business for Defendant. (Ibid. at ¶ 8.) Defendant was not served with any documents during the proceedings and only found out about the lawsuit and judgment after receiving the Abstract of Judgment in the mail on or about April 18, 2016[1]. (Ibid. at ¶¶ 9-11.) As of the date of the Motion, Defendant has not been served with the Summons and Complaint. (Ibid. at ¶ 13.)

“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.) The Proof of Service filed by Plaintiff shows that the documents were served by personal service by Rafael Miranda; however, Miranda is not a registered process server. (1-25-21 Proof of Service.) Thus, the Proof of Service does not establish the presumption that service was completed. Thus, the Court finds the Proof of Service defective.

Given that the Court finds the Proof of Service defective, Defendant’s Motion to Vacate Default/Judgment is GRANTED.

“‘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 described at length above, Defendant has submitted a sworn affidavit and the Statement of Information from the California State Secretary, showing that, for the relevant period, the correct address for service for Defendant has been 1781 Atchison St., Pasadena, CA 91104, and the agent for service of process has been Avetis Yetenekyan. (Yetenekyan Decl. ¶¶3; Ex. A.) The Proof of Service filed by Plaintiff on January 25, 2021, shows that the Summons and Complaint were left with Paul Pogosyan at 5756 West Avenue J14, Lancaster, CA 93536. (1-25-21 Proof of Service.) These documents were not served by a registered process server and are inconsistent with the Statement of Information from the California Secretary of State. (Yetenekyan Decl. ¶¶ 7-8; Ex. A.) Although Defendant has not moved to quash service of summons “on or before the last day of his or her time to plead,” the Court finds good cause to grant the Motion because Defendant did not discover the lawsuit until it received the Abstract of Judgment in the mail. (Code of Civ. Proc. § 418.10(a)(1); Ibid. at ¶ 11.)

For these reasons, Defendant’s Motion to Quash Service of Summons and Complaint is GRANTED.

Code of Civil Procedure § 583.210 states that “[t]he summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision, an action is commenced at the time the complaint is filed.” Service must be effective to prevent dismissal. (National Union Fire Ins. Co. v. Superior Court of San Francisco (1966) 247 Cal.App.2d 326, 329.)

Here, Plaintiff filed the Complaint on June 26, 2019. As of the date of the Motion, August 30, 2022, Defendant has not been served with the Summons and Complaint. (Yetenekyan Decl. ¶ 13.) Since the Court grants Defendant’s Motion to Quash Service of Summons and Complaint and Defendant has not been served within three years of the Complaint being filed, the Court GRANTS Plaintiff’s Motion to Dismiss the case.

Defendant Kinetic Freight Logistics’ Motion to Vacate Default and Default Judgment is GRANTED.

[1] Abstract of Judgment was filed with the Court on April 13, 2022. The Court assumes that the Declaration contains the wrong year, “2016” instead of “2022.”