Judge: Katherine Chilton, Case: 20STLC02230, Date: 2022-08-11 Tentative Ruling

Case Number: 20STLC02230     Hearing Date: August 11, 2022    Dept: 25

PROCEEDINGS:      MOTION TO VACATE DEFAULT JUDGMENT;

                                    QUASH SERVICE OF SUMMONS

MOVING PARTY:   Defendant Shachar Barbie

RESP. PARTY:         None

MOTION TO VACATE DEFAULT JUDGMENT; QUASH SERVICE OF SUMMONS

(CCP 473.5, CCP 418.10)

TENTATIVE RULING:

Defendant Shachar Barbie’s Motion to Vacate Default and Default Judgment and Quash Service of Summons is CONTINUED TO SEPTEMBER 12, 2022 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE.  At least 16 court days before the continued hearing, Defendant must file and serve supplemental papers as requested herein.  Failure to do so will result in the Motion being placed off calendar or denied.

SERVICE: 

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

[   ] Correct Address (CCP §§ 1013, 1013a)                                                 YES

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

OPPOSITION:          None filed as of August 9, 2022.               [   ] Late                      [X] None

REPLY:                     None filed as of August 9, 2022.               [   ] Late                      [X] None

ANALYSIS:

I.                Background

On March 6, 2020, Plaintiff United Financial Casualty Company (“Plaintiff”) filed a complaint against Defendant Shachar Barbie (“Defendant”) arising out of a motor vehicle accident between Defendant and an individual insured by Plaintiff’s automobile insurance policy.  (Compl., p. 5.)  Plaintiff is seeking $20,806.32 in property damages and pre-judgment interest at the rate of 10% per annum.  (Ibid. at p. 3.)

On July 20, 2020, Plaintiff filed a Request for Entry of Default/Judgment and Request for Dismissal of Does 1-20.  The Request for Dismissal was granted, and dismissal was entered on July 21, 2020; however, Plaintiff’s Request for Entry of Default/Judgment was rejected because proof of service had not been filed.  (7-20-20 Notice of Rejection.)

On August 7, 2020, Plaintiff filed Proof of Service.  On November 3, 2020, Plaintiff filed a Request for Entry of Default/Judgment and default was entered on the same day.  Dismissal of Does 1-20 was also entered on November 4, 2020.  On November 23, 2020, default judgment was entered in favor of Plaintiff and against Defendant in the sum of $21,225.32.  (11-23-20 Default Judgment.)

On July 15, 2022, Defendant filed the instant Motion to Set Aside/Vacate Default and Default Judgment and Quash Service of Summons.  No opposition was filed.

II.              Legal Standard

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).)

III.            Discussion

Defendant’s Motion is timely, having been filed within two years after default judgment was entered on November 3, 2020.  (Mot.; 11-23-20 Default Judgment.)

Defendant seeks to set aside the default and default judgment stating that service was not effectuated as Defendant was no longer living at the address listed on the Proof of Service filed with the Court and does not know the “co-resident” listed.  (Barbie Decl. ¶¶ 4-7.)  Defendant first learned about the lawsuit after being informed by a loan officer regarding the default judgment.  (Ibid. at ¶ 9.)  Defendant was not evading service.  (Ibid.)

Defendant’s Motion complies with most of the procedural requirements set forth by Code of Civil Procedure § 473.5.  The Motion is accompanied by a Proposed Answer (Exhibit A) and Defendant’s affidavit under oath.  (See Barbie Decl.)  However, the Notice of Motion contains the wrong address for the court where the Motion will be heard – 111 North Hill Street, Los Angeles, CA 90012.  The Motion will be heard at the Spring Street Courthouse, located at 312 North Spring Street, Los Angeles, CA 90012.

In seeking to set aside the default and default judgment, Defendant claims that there was lack of proper service.  On August 7, 2020, Plaintiff filed Proof of Service, showing that on March 22, 2020, Defendant was served by Substituted Service.  Specifically, the Summons and Complaint and other documents were left with Francisco Diaz, Co-Resident at 1050 Post St. Apt. 44, San Francisco, CA 94109.  (8-7-20 Proof of Service.)  Plaintiff also mailed the documents to the same address on March 23, 2020.  (Ibid.)  The Proof of Service is signed by a registered California process server under penalty of perjury and a declaration of diligence is attached.  (Ibid.).  “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.)

Defendant submits a sworn affidavit, an email exchange regarding a potential move-out date with the property management company, and a letter from U.S. Citizenship and Immigration Services containing a different address, in support of the argument that Defendant was no longer living at the San Francisco address listed on the Proof of Service.  (Barbie Decl.; Exs. B-C.)  The Court finds that Defendant has overcome the presumption established by the Proof of Service filed on August 7, 2020, and has established that Plaintiff served Defendant at the wrong address.

However, the Court orders Defendant to serve and file a corrected Notice of Motion prior to ruling on the Motion.  The hearing on the Motion is CONTINUED to allow Defendant to file a proper notice.

IV.           Conclusion & Order

Defendant Shachar Barbie’s Motion to Vacate Default Judgment and Quash Service of Summons is CONTINUED TO SEPTEMBER 12, 2022 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE.  At least 16 court days before the continued hearing, Defendant must file and serve supplemental papers as requested herein.  Failure to do so will result in the Motion being placed off calendar or denied.

Moving party to give notice.