Judge: Katherine Chilton, Case: LAM11CC3736, Date: 2022-11-14 Tentative Ruling

Case Number: LAM11CC3736    Hearing Date: November 14, 2022    Dept: 25

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

 

MOVING PARTY:   Defendant Santonio Marquis Bullock

RESP. PARTY:         Plaintiff State Farm Mutual Automobile Insurance Company

 

MOTION TO SET ASIDE/VACATE DEFAULT AND DEFAULT JUDGMENT;

QUASH SERVICE OF SUMMONS

(CCP § 473(d), 473.5, 418.10.)

 

TENTATIVE RULING:

 

The Motion to Set Aside Default and Default Judgment, Quash Service of Summons, Extend Time to Respond, and Denial of Due Process Rights filed by Defendant Santonio Marquis Block is DENIED.

 

SERVICE: 

 

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

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

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

 

OPPOSITION:          Filed on October 26, 2022                                    [   ] Late                      [   ] None

REPLY:                     Filed on November 7, 2022                                    [X] Late                       [   ] None

 

ANALYSIS:

 

I.                Background

 

On December 8, 2011, Plaintiff State Farm Mutual Automobile Insurance Company (“State Farm” or “Plaintiff”) filed a complaint against Defendant Santonio Marquis Bullock (“Defendant” or “Bullock”) for subrogation.

 

On January 20, 2012, Plaintiff filed Proof of Service of Summons and Complaint by substituted service.

 

On May 31, 2012, based on Plaintiff’s request, default was entered against Defendant Bullock.  (5-31-12 Request for Entry of Default.)  Subsequently, on June 8, 2012, Default Judgment was entered against Defendant in the amount of $21,887.07.  (6-8-12 Judgment.)

 

On May 16, 2022, Plaintiff/Judgment Creditor State Farm filed an Application for and Renewal of Judgment, which was granted on May 18, 2022.  (5-18-22 Notice of Renewal of Judgment.)  The Application and Notice of Renewal of Judgment were served on Defendant/Debtor on June 1, 2022.  (6-8-22 Proof of Service.)

 

On July 12, 2022, Defendant, in propria persona, filed a Motion to Vacate Judgment.

 

On September 22, 2022, the Court noted that the Motion had not been properly scheduled for a hearing and, on its own motion, scheduled the hearing for October 17, 2022.  (9-22-22 Minute Order.)

 

On October 4, 2022, Defendant filed a Notice of Errata and an Amended Motion to Set Aside Default and Default Judgment, Quash Service of Summons, Extend Time to Respond, and Denial of Due Process Rights (“Motion”).

 

On October 17, 2022, the Court noted that the Amended Motion was filed eight (8) court days before the hearing, instead of the required sixteen (16) court days with an additional five (5) days in case of mailing.  (10-17-22 Minute Order.)  The Court continued the hearing to allow Plaintiff an opportunity to receive the moving papers and file an opposition.  (Ibid.)

 

On October 26, 2022, Plaintiff filed an Opposition to the Motion (“Opposition”) and on November 7, 2022, Defendant filed a late Reply to the Opposition (“Reply”).

 

II.              Legal Standard & Discussion

 

Defendant seeks to set aside default and default judgment because (1) Defendant was denied due process and his constitutional rights were violated, (2) the summons and complaint were not served in compliance with Code of Civil Procedure § 417.10, (3) the Court does not have personal jurisdiction over Defendant because of invalid service (Code of Civil Procedure § 418.10(a)(1)), (4) the judgment and/or default is void on its face (Code of Civil Procedure § 473(d)), (5) service of summons did not result in actual notice (Code of Civil Procedure § 473.5), and (6) the Court may extend a party’s time to plead for good cause (Code of Civil Procedure § 418.10(a)(1).

 

On January 20, 2012, Plaintiff filed Proof of Personal Service, indicating that registered process server G. Melendez served Defendant with the Summons, Complaint, and other documents in the case by substituted service.  (1-20-12 Proof of Service.)  Specifically, Melendez left the documents with Jane Doe, Occupant (white, female, 50’s, 5’6, 140 lbs, blonde hair) on December 23, 2011, at 8:37 pm at 20701 Kenwood Ave, Torrance, CA 90502 and thereafter, mailed the documents to the same address.  (Ibid.)

 

Defendant states that he was not served with the Summons and Complaint and does not know who was served because the only proof of service he was able to access indicates that the documents were left with “Jane Doe.”  (Amended Mot. p. 5; Bullock Decl. ¶¶ 2-3.)  Defendant did not receive a copy of the summons or complaint and did not learn about the case until June 2022, when he was served with the renewal of judgment.  (Am. Mot. p. 5; Bullock Decl. ¶¶ 4, 6, 16.)  Since Defendant has not had access to any court records or the Complaint, he does not know what incident the lawsuit concerns.  (Am. Mot. p. 5; Bullock Decl. ¶¶ 10-11.)  He states that if it is related to an accident on October 15, 2006, then the Complaint, which was filed in December 2011, was filed after the statute of limitations had expired.  (Am. Mot. p. 5; Bullock Decl. ¶¶ 12-14.)  Since Defendant was not served, he did not have an opportunity to argue that the statute of limitations had expired.  (Am. Mot. at p. 6.)

 

Defendant states that the Code of Civil Procedure § 417.10 requires the name of the party being served.  (Ibid. at pp. 7-8.)  Here, Defendant was not personally served, did not get notice, and does not know who was served and at what address.  (Ibid.)  Defendant has also been unable to obtain a copy of the file to verify the address and manner of service.  (Ibid. at p. 8.)  However, Jane Doe “is not an official name of a person to satisfy the requirements that the name of the person served be listed on the proof of service.”  (Ibid. at p. 9.)

 

Defendant argues that he cannot be deprived of property without due process of law, pursuant to the United States Constitution, Article VII, Amendment XIV, Section 1.  (Ibid.)  Here, a judgment was entered against him without his knowledge or ability to defend against the action.  (Ibid.)

 

Defendant also moves to quash service of summons because he was not properly served and thus, the Court did not have jurisdiction over him.  (Mot. p. 13; Bullock Decl. ¶ 7.)  Plaintiff did not comply with Code of Civil Procedure § 417.10 and Defendant did not get notice of the case until he was served with the renewal of judgment.  (Ibid.)  He was not evading service because he did not know he was being sued.  (Ibid. at ¶ 15.)

 

Defendants argues that the Court may set aside void judgment under Code of Civil Procedure § 473(d).  (Mot. p. 10.)  Defendant argues that the summons and complaint are “void in fact and void on its face” because the case was filed after the statute of limitations had elapsed.  (Ibid.)  Service of summons and complaint is also invalid and void because defendant was not properly served in compliance with Code of Civil Procedure § 417.10.

Finally, Defendant could not file a proposed answer because he has been unable to obtain access to the Court records and the Complaint.  (Bullock Decl. ¶ 17.)

 

Plaintiff/Creditor opposes the Motion and requests Judicial Notice of the Summons, Complaint, Proof of Service, Declaration of Diligence, Judgment, Renewal of Judgment, and Proof of Service (Renewal of Judgment).  (RJN.)  According to Evidence Code § 452, the Court may take judicial notice of matters that include records or rules of another court and facts or propositions of common knowledge, among other matters.  Plaintiff/Creditor seeks judicial notice of the orders and documents filed in the instant case. The Court does not find it necessary to take judicial matters of its own records.

 

Plaintiff argues that Defendant’s Motion is untimely under Code of Civil Procedure § 683.170, which requires a motion to vacate renewal of judgment to be filed within 30 days of service of notice of renewal of judgment.  (Oppos. pp. 1-2.)  The Notice of Renewal of Judgment was served on June 1, 2022, and Defendant admits that he received a copy of the renewal in June 2022.  (6-8-22 Proof of Service; Oppos. p. 2.)

 

Plaintiff also argues that under Code of Civil Procedure § 683.170, Defendant cannot show a meritorious defense to the underlying subrogation cause of action.  (Ibid. at pp. 2-3.)  Defendant’s argument that the statute of limitations had expired is invalid because the instant case concerns a January 2009 traffic collision.  (Ibid.)

 

Plaintiff also states that the proof of service establishes a rebuttable presumption that service was proper.  (Ibid. at pp. 3-4.)  Defendant was served by substituted service in compliance with Code of Civil Procedure § 415.20.  (Ibid.)  On May 18, 2015, he was notified by the Department of Motor Vehicles (“DMV”) at his address of record, 215 E. Burnett Street, Long Beach, CA 90806, that his license had been suspended because he had not paid the judgment.  (Reese Decl. ¶ 5.)  Thus, Defendant does not provide evidence that the address was improper to overcome the presumption.  (Mot. pp. 3-4.)

 

Finally, Plaintiff argues that the Motion is untimely pursuant to Code of Civil Procedure §§ 473.5 and 473(d), does not establish lack of actual notice, and fails to include a proposed answer.  (Ibid. at pp. 4-5.)

 

On November 7, 2022, Defendant filed a late Reply to the Opposition.  The Court in its discretion, considers the Opposition.  (California Rules of Court, rule 5.94(c).)  Defendant argues that “he did everything reasonably possible to respond timely” after receiving the renewal of judgment; however, his filing was initially rejected, and he was attempting to determine the contents of the matter.  (Reply pp. 2-3.)

 

Defendant states that he has a meritorious defense to vacate the renewal of judgment because he was not served with the pleadings.  (Ibid. at p. 3.)  He has also provided information to rebut the presumption of service because he was never served and did not receive any documents related to the case.  (Ibid. at p. 4.)  He was not living at the address listed on the Proof of Service and did not live with a person named “Jane Doe.”  (Ibid.)  He did not get a copy of the summons and complaint until November 4, 2022, after numerous attempts to get access to these documents through the Court and opposing counsel.  (Ibid.)

 

In opposition to Plaintiff’s argument that it complied with Code of Civil Procedure § 415.20(b), Defendant states that he had already vacated the property and did not live at the address on the date of service and the “Jane Doe” indicated on the Proof of Service was “not a competent member of the Defendant’s household.”  (Ibid. at p. 5.)  Moreover, the Proof of Service does not state the name of the person who was served or the relationship of the person to the Defendant in violation of Code of Civil Procedure § 417.10(a).  (Ibid. at pp. 5-6.)  Defendant states that on November 8, 2011, Defendant was living with his mother at 1538 W. 205th Street, Apt. D, Torrance, CA 90501.  (Ibid.)  Defendant has attached a utility bill in the name of his mother Geralin Bullock as Exhibit B.  (Ibid. at p. 13.)  The utility bill does not list the Defendant’s name and the Court cannot admit the exhibit into evidence because it has not been authenticated.  (Evidence Code §§ 1400 et seq.)

 

In response to Defendant’s contention that the Motion is untimely under §§ 473.5 and 473(d), Defendant reiterates that he was never served and could not get access to the Complaint through the Plaintiff or the Court, because the case was filed many years ago.  (Ibid. at p. 6.)

 

            Analysis

 

A motion to vacate a renewal of judgment may be filed under Code of Civil Procedure § 683.170.  Under this section, a motion to vacate a renewal of judgment must be made within 30 days after notice of the renewal is served and may be based on any ground that would be a defense to an action on the judgment.  (Code Civ. Proc., § 683.170(a)-(b).)  “The judgment debtor bears the burden of proving, by a preponderance of the evidence, that he or she is entitled to relief under section 683.170.”  (Fidelity Creditor Service, Inc. v. Browne (2001) 89 Cal.App.4th 195, 199.)

 

The California Supreme Court has held that “failure to have served the summons and complaint is a defense to an action on a judgment.”  (Ibid. at 202, referring to Hill v. City Cab etc. Co. (1889) 79 Cal. 188, 190-191.)  “‘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.)  Since a court acquires personal jurisdiction over a defendant through the service of a summons, the undisputed failure to serve a summons and complaint provides a basis for vacating a renewed judgment.  (Fidelity, supra, 89 Cal.App.4th at 203.)

 

“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.)

 

First, Defendant’s Motion, filed July 12, 2022, is untimely since it was filed more than 30 days after Notice of Renewal was served.

 

Second, even if the Motion was filed timely, Defendant has not provided the Court with a proper basis for vacating the default and default judgment.

 

Defendant relies on Code of Civil Procedure §§ 473(d) and 473.5, stating that the default and default judgment should be vacated because he did not have notice of the lawsuit and because the judgment is void.  However, the instant Motion is not timely pursuant to §§ 473.5 and 473(d), as both sections require that 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.”  (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180-81; Schekel v. Resnik (1994) 27 Cal.App.4th Supp. 1, 3-4 (“[t]he Rogers court held that the time limitation set forth in Code of Civil Procedure section 473.5 applies by analogy to motions for relief from default judgment valid on its face but otherwise void for improper service” [citing Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1124.]).

 

Moreover, the Court cannot vacate the default and default judgment based on Defendant’s argument that he was deprived of property without due process of law, because a judgment was entered against him without his knowledge or ability to defend against the action.  Defendant’s due process rights were not violated because he had 30 days from the date of service to file responsive pleadings and since he did not, default was properly entered against him.  (California Code of Civil Procedure § 412.20(a)(3).)

 

Defendant also moves to quash service of summons on the basis that he was not properly served and due to the invalid service, the Court did not have personal jurisdiction over him.  According to § 418.10(a), a defendant may move to quash service of summons based on lack of jurisdiction “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.”

 

Pursuant to Code of Civil Proc. § 415.20, “[i]f a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served…, a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.”  “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.)

 

Here, a registered California process server’s Declaration of Reasonable Diligence demonstrates that Plaintiff attempted to personally serve Defendant on December 19, 21, and 22, 2011, before leaving the pleadings with “Jane Doe, Occupant.”  (1-20-12 Proof of Service.)  In opposing proper service, Defendant simply states in his declaration that he was not served with the Summons and Complaint and did not live at the address where he was served.  In the Reply, he states that he lived with his mother on November 8, 2011, but does not provide any evidence to support his argument that he did not live at the address where he was served.

 

            Defendant argues that Plaintiff impermissibly left the documents with “Jane Doe” without including the real name of the person.  However, Code of Civil Procedure 415.20(b), requires that the summons and complaint be left “in the presence of a competent member of the household.”  Courts have noted that individuals who are served may refuse to provide their true legal names and, thus, it is an accepted practice to list fictitious names or a description of a person in the Proof of Service.  (Trackman v. Kenney (2010) 187 Cal. App.4th 175, 183.)  The Court in Trackman, refers to the California Supreme Court’s policy of liberally construing service of process statutes and not allowing minor deficiencies to defeat service.  (Trackman, 187 Cal.App.4th at 184, referring to Pasadena Medi-Center Associates v. Superior Court (1973) 9 Cal.3 773, 778.)  Here, Plaintiff has complied with the requirements of § 415.20 by leaving the pleadings with a co-occupant, despite leaving out the individual’s legal name.  Defendant has not overcome the presumption that service was proper and thus, the Court cannot grant his motion to quash service of summons.

            Finally, Defendant moves to extend his time to plead pursuant to Code of Civil Procedure § 418.10.  Defendant has misconstrued this section to mean that his time to plead can be extended; however, the extension refers to the timeline for filing a motion to quash service of summons.

            Given that Defendant has not shown a proper basis for vacating the renewal of judgment, and thereafter, vacating the default judgment and default, the Court DENIES Defendant’s Motion to Set Aside Default and Default Judgment, Quash Service of Summons, Extend Time to Respond, and Denial of Due Process Rights

 

III.            Conclusion & Order

 

For the foregoing reasons,

 

The Motion to Set Aside Default and Default Judgment, Quash Service of Summons, Extend Time to Respond, and Denial of Due Process Rights filed by Defendant Santonio Marquis Block is DENIED.

 

Moving party is to give notice.