Judge: Kerry Bensinger, Case: 18STCV05256, Date: 2023-02-08 Tentative Ruling

Case Number: 18STCV05256    Hearing Date: February 8, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On November 16, 2018, plaintiff Zeev Dorfman (“Plaintiff”) filed this premises liability action against defendants Duane King (“King”) and Cantara Village Condominium Association, Inc. (“Cantara Village”) (collectively, “Defendants”).

On December 27, 2018, Defendant Cantara Village Condominium filed a Cross-Complaint against Defendant King for indemnity and contribution.

On January 29, 2021, Plaintiff’s request for entry of default against King was granted.

On September 21, 2022, Defendant King filed an Answer to the Cross-Complaint.

On October 14, 2022, Defendant King filed the instant motion to set aside default pursuant to Code of Civil Procedure section 473.5.

II.          LEGAL STANDARD

Code of Civil Procedure § 473.5 permits the court to vacate a default 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. (CCP § 473.5(a).) The phrase actual notice means genuine knowledge and does not include constructive or imputed notice to the client. (Tunis v. Barrow (1986) 184 Cal.App.3d 1069, 1077.) “A defendant seeking vacation of a default judgment entered against him must further show that his lack of actual notice in time to defend the action was not caused by his inexcusable neglect or avoidance of service.” (Id. at 1077-1078, citing CCP § 473.5(c).)

Moreover, it is well established that the court is “not required to accept [a] self-serving evidence contradicting the process server's declaration.” (Rodriguez v. Nam Min Cho (2015) 236 Cal.App.4th 742, 751.)

Finally, a motion under Section 473.5 must include “the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.” (CCP § 473.5(b).)

III.        DISCUSSION

Plaintiff’s request for judicial notice of various documents filed in this action is GRANTED. (Evid. Code § 452.)

Here, Defendant King has not filed a notice of a copy of the answer, motion, or other pleading proposed to be filed in the action as required by CCP § 473.5(b). Thus, the Court cannot grant the motion pursuant to this section.

However, the default may be vacated pursuant to Code of Civil Procedure section 473(d). Section 473(d) provides that “[t]he court may . . . on motion of either party after notice to the other party, set aside any void judgment or order.” (CCP § 473(d).) A default judgment is void against a defendant who was not served with a summons in the manner prescribed by statute. (See Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 858.) Relief pursuant to Section 473(d) may be made at any time. (See Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.)

“‘A judgment is void on its face if the court which rendered the judgment lacked personal or subject matter jurisdiction or exceeded its jurisdiction in granting relief which the court had no power to grant. [Citations.]’ [Citation.]” (Carr v. Kamins (2007) 151 Cal.App.4th 929, 933; see also Svetina v. Burelli (1948) 87 Cal.App.2d 707, 709 [“It is not void on its face unless it appears therefrom that the court did not have jurisdiction either of the person or of the subject matter. [Citation.]”].)

Further, under Section 473(d), a default or default judgment is void if a defendant was not served with a summons in the manner prescribed by statute. (See Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 858; Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.)

Defendant King represents that he was not served with the summons or request for default at his home address. Thus, the default would be void on its face.

Under Evidence Code § 647, “[t]he return of a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.”  Under Evidence Code § 604, “[t]The effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption. Nothing in this section shall be construed to prevent the drawing of any inference that may be appropriate.”

Here, the proof of service of summons indicates service by a registered process server. Thus, King must rebut the presumption of proper service. Based on all the filings, it is clear that the proof of service indicates the wrong address for King. Specifically, the personal service identifies apartment 203, not 230 which both parties appear to acknowledge is his address. While Plaintiff reiterates that service was made at his apartment 203 address, Plaintiff also indicates that Defendant King includes his address at the top of the caption page of the instant motion. However, the address at the top of the caption page indicates apartment 230. Defendant King was also served with the request for entry of default at the incorrect address, i.e., apartment 203 again. Accordingly, the default is void on its face and must be set aside.

Defendant King also requests that the Court quash service. While the default which was taken on January 29, 2021 is void, Defendant thereafter made a general appearance by filing an answer to the Cross-Complaint on September 21, 2022. (See CCP § 1014.) A general appearance operates as a consent to jurisdiction of the person, dispensing with the requirement of service of process, and curing defects in service. (CCP §§ 410.10, 410.50; Dial 800 v. Fesbinder (2004) 118 Cal.App. 4th 32, 52.) Accordingly, the Court may not quash service of the summons now that Defendant King has filed an answer in the action, albeit to the Cross-Complaint.

Based on the foregoing, the motion is GRANTED in part.

IV.         CONCLUSION

Defendant King’s motion is GRANTED in part.

The default is set aside and Defendant King must file a responsive pleading within 30 days.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Dated this 8th day of February 2023