Judge: Latrice A. G. Byrdsong, Case: 22STLC08597, Date: 2024-04-17 Tentative Ruling

Case Number: 22STLC08597    Hearing Date: April 17, 2024    Dept: 25

Hearing Date:                         Wednesday, April 17, 2024

Case Name:                             STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. CHARLOTTE MCKENZIE FREE AKA CHARLOTTE FREE SANCHEZ

Case No.:                                22STLC08597

Motion:                                   Motion to Set Aside Default and Default Judgment Pursuant to CCP § 473.5

Moving Party:                         Defendant Charlotte Free

Responding Party:                   Plaintiff State Far, Mutual Automobile Insurance.

Notice:                                    OK

Tentative Ruling:                    Defendant’s Motion to Set Aside Default Entered and Default Judgment is DENIED.

SERVICE: 

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

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

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

OPPOSITION:          Filed as of April 04, 2024                               [   ] Late          [   ] None 

REPLY:                     None filed as of April 10, 2024                      [   ] Late          [X] None 

BACKGROUND

On December 27, 2022, Plaintiff State Farm Mutual Automobile Insurance Company (“Plaintiff”) filed an automobile subrogation action against Defendant Charlotte McKenzie Free aka Charlotte Free Sanchez (“Defendant”).

On June 01, 2023, Plaintiff moved for default to be entered against the Defendant, and the Clerk entered default against Defendant the same day.

On July 24, 2023, the Court entered default judgment against the Defendant in the amount of $15,412.92.

On March 14, 2024, Defendant filed the instant Motion to Set Aside Default and Default Judgment.

Plaintiff files in opposition.

No reply has been filed.

MOVING PARTY POSITION

Defendant prays for the Court to issue an order setting aside both the default and default judgment entered against itself on June 01 and July 24, 2023, respectively, under Code of Civil Procedure § 473.5. Defendant argues that Plaintiff’s service did not result in actual notice. Defendant asserts that although the invalidity may not appear from an examination of the judgment roll, service was nonetheless invalid as the Summons and Complaint were never served on the Defendant resulting in Defendant lacking actual knowledge of the lawsuit.

OPPOSITION

            In opposition, Plaintiff argues that the Court should deny the motion as Defendant was properly served under CCP § 415.20(b). Plaintiff asserts that it made numerous attempts to provide Defendant with actual notice of this action, showing reasonable diligence, yet Defendant chose not to participate or act. Plaintiff points out that Defendant does not refute that 19608 Babington Street, Canyon County, CA is the correct address.  Rather Defendant merely states that she did not know about this lawsuit until she was contacted by counsel. Moreover, Plaintiff argues that Defendant has failed to provide a copy of her proposed answer.

REPLY

            No reply has been filed.

ANALYSIS

I.          Legal Standard

A court may set aside a default or default judgment when service of summons has not provided a party with 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.) 

II.        Discussion

Defendant prays to the Court for an order setting aside the default and default judgment entered against her on June 01 and July 24, 2023, under CCP 473.5, arguing that service did not render Defendant with actual notice to provide her with enough time to defend.

On April 14, 2023, Plaintiff filed a Proof of Service, indicating that on April 08, 2023, Defendant was served by Personal Service. Specifically, Plaintiff’s proof of service indicates that service was rendered at 19608 Babington Street, Canyon County, CA. (04-14-23 Proof of Personal Service.) The Proof of Service is signed by a registered California process server, Nicholas Turner. (Id.). “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, Defendant’s motion is not timely filed. Since default judgment has already been entered, Defendant needed to have filed the instant motion within 180 days of service of written notice that the default had been entered. Here, default judgment was entered against Defendant on July 24, 2023. (07-24-23 Default Judgment.) Notice of Entry of Judgment was served on the Defendant on September 06, 2023. Defendant filed the instant motion on March 14, 2024, over 180-day time limit. Thus, the Court finds the motion not to be timely.

Defendant provides the Court with her own sworn declaration in which she states that she did not receive actual notice of the instant action and was surprised when she learned of this action on or about September 18, 2023, when attorney Alexandra Barreno called her regarding the case. (Charlotte Free Decl. ¶ 2.) Defendant swears that at that time, she told Ms. Barreno that she did not know about this case until that day. (Id.)

In opposition, Plaintiff argues that Defendant was properly always served under CCP 415.20 because it has shown it had made reasonable efforts to render service. Plaintiff provides the declaration of its counsel who states that on August 02, 2022, Plaintiff’s Counsel sent a demand letter to Defendant at 19608 Babington Street, Canyon County, CA. (Breeanne L. Reese Decl. ¶ 10.)  Counsel swears that the letter was never returned as undeliverable. (Id.) The same day, counsel sent a Request for Change of Adress to the United States Post Office to confirm if 19608 Babington Street, Canyon County, CA was an address where Defendant received mail. (Id. ¶ 11; Exh A.) Counsel further states that the United States Postal Service (“USPS”) confirmed that Defendant received mail at this address, and that it was thus, a valid service address. (Id.) On September 9, 2022, Plaintiff sent another Request for Change of Adress to confirm the Babington St. address, and received confirmation that Defendant still received mail there. (Id. ¶ 12.; Exh. B.) Plaintiff submitted a third Request for Change of Adress on March 8, 2023, to the USPS to confirm the Babington St. address was still an address where Defendant received mail, which the USPS confirmed to be the case. (Id. ¶ 14; Exh. C.)

The Court finds that Defendant has not overcome the presumption established by Plaintiff’s Proof of Service. Here, Mr. Turner attempted service on January 05, 2023, at the Babington St. Address. (01/20/23 Decl. of Diligence.) Mr. Turner states that per the resident, Defendant is unknown and does not reside there. (Id.) However, based on Plaintiff’s opposition papers, Plaintiff confirmed several times that the Babington St. Adress was an address at which Defendant receives mail. Service was again attempted and completed on April 08, 2023.

Plaintiff correctly notes that Defendant does not refute that service was rendered at the proper address.  Moreover, Defendant’s declarations do not clearly indicate that the alleged lack of notice was not caused by her own avoidance of service or inexcusable neglect. Plaintiff’s proof of service complies with all statutory requirements in that it reflects that the Summons and Complaint were left at 19608 Babington Street, Canyon County, CA, which was verified as Defendant’s usual mailing address through the U.S. Post Office and left with a competent adult member of the household.  Finally, Plaintiff states that Defendant’s counsel contacted Plaintiff’s counsel on September 18, 2023, to advise of her representation of Defendant indicating knowledge of this action, more than five months prior to filing the instant motion. 

Thus, the Court finds that Defendant has not overcome the presumption established by the Proof of Service filed on April 14, 2023, and thus DENIES Defendant’s Motion to Set Aside Default and Default Judgment under CCP 473.5.

III.       Conclusion

            Defendant’s Motion to Set Aside Default and Default Judgment is DENIED.

Moving party is ordered to give notice.