Judge Katherine Chilton, Case 20STLC02230 2022-10-13 Tentative Ruling

Judge: Katherine Chilton, Case: 20STLC02230, Date: 2022-10-13 Tentative Ruling

Case Number: 20STLC02230 Hearing Date: October 13, 2022 Dept: 25

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

MOVING PARTY: Defendant Shachar Barbie

RESP. PARTY: None

MOTION TO SET ASIDE/VACATE DEFAULT AND DEFAULT JUDGMENT;

QUASH SERVICE OF SUMMONS

(CCP 473.5, CCP 418.10)

TENTATIVE RULING:

Defendant Shachar Barbie’s Motion to Set Aside/Vacate Default and Default Judgment is GRANTED. Default Judgment entered on November 23, 2020, and default entered on November 3, 2020, are hereby VACATED.

Defendant Barbie’s Motion to Quash Service of Summons and Complaint is also GRANTED.

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 October 11, 2022. [ ] Late [X] None

REPLY: None filed as of October 11, 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 November 3, 2020, Plaintiff filed a Request for Entry of Default/Judgment and default was entered on the same day. Subsequently, 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 a Motion to Set Aside/Vacate Default and Default Judgment and Quash Service of Summons. On August 11, 2022, the Court continued the hearing on the Motion to allow Defendant an opportunity to file and serve a proper Notice of Motion. (8-11-22 Minute Order.) On September 12, 2022, the Court noted that Defendant had not filed a corrected Notice and denied the Motion. (9-12-22 Minute Order.)

On September 14, 2022, Defendant filed the instant Motion to Set Aside/Vacate Default and Default Judgment and Quash Service of Summons (“Motion”). No opposition has been 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, “‘[s]ervice 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.)

III. Discussion

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.)

When a motion to quash is brought concurrently with a motion to vacate a default, the court must rule on the motion to vacate first. (Steven M. Garber & Assocs. v Eskandarian (2007) 150 Cal.App.4th 813, 823-24 [holding that a defendant against whom a default has been entered is out of court and is not entitled to take any further affirmative steps in the action except for a motion for relief from the default].) Accordingly, the Court considers Defendant’s requests for relief from default and default judgment first.

Defendant’s Motion to Set Aside Default and Default Judgment s timely, having been filed within two years after default judgment was entered on November 23, 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. ¶¶ 2-8.) Defendant first learned about the lawsuit after being informed by a loan officer regarding the default judgment on or around June 15, 2022. (Ibid. at ¶ 9.) Defendant was not evading service. (Ibid. at ¶ 10.)

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.) Defendant has also filed a Proposed Answer as Exhibit A. (Ibid., Ex. A.)

No opposition has been filed by the Plaintiff.

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. Thus, Defendant’s Motion to Set Aside/Vacate Default and Default Judgment is GRANTED.

Furthermore, Defendant may file the Motion to Quash “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.” (Code of Civ. Proc. § 418.10(a)(1). Here, Defendant has shown good cause for not filing a motion to quash within the statutorily permitted time, as he was not served properly and lacked knowledge about the lawsuit. Defendant has established that the service was not proper and thus, the Court lacked jurisdiction over him. For this reason, Defendant’s Motion to Quash Service of Summons and Complaint is GRANTED.

IV. Conclusion & Order

For the foregoing reasons,

Defendant Barbie’s Motion to Quash Service of Summons and Complaint is also GRANTED.

Moving party to give notice.