Judge: Layne H. Melzer, Case: 2013-00645551, Date: 2022-10-13 Tentative Ruling
DEF Daniel T Cwieka
Motion to Set Aside/Vacate Default and Judgment
Defendant Daniel T. Cwieka’s motion to vacate the default and default judgment entered against him in this action on 2/14/14 and 3/21/14 [ROA ##39, 55] is granted.
The law favors a trial on the merits, and doubts in applying Cal. Code Civ. Proc. § 473 are resolved in favor of the party seeking relief from default. Iott v. Franklin (1988) 206 Cal. App. 3d 521, 526.
Under Code Civ. Proc. § 473(d), the court may set aside any void judgment or order. Code Civ. Proc. § 473(d). Under section 473, subdivision (d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service.” Hearn v. Howard (2009) 177 Cal. App. 4th 1193, 1200 (quoting Ellard v. Conway (2001) 94 Cal. App. 4th 540, 544). Section 473(d) provides relief from both the entry of default and a default judgment. Cal. Prac. Guide Civ. Pro. Before Trial § 5:420 (“If the summons was not properly served, relief from default or default judgment should be sought under CCP § 473(d).”).
The six-month limit does not apply in such a situation. Plotitsa v. Superior Court (1983) 140 Cal. App. 3d 755, 761 (finding default judgment entered where record showed absence of proper of statement of damages was void and subject to Code Civ. Proc. § 473(d) relief past six months). A judgment which is void on its face is subject to set-aside at any time. Cruz v. Fagor America, Inc. (2007) 146 Cal. App. 4th 488, 496. Where a judgment is valid on its face but void for improper service, relief must be sought within two years of the default judgment. Rogers v. Silverman (1989) 216 Cal. App. 3d 1114, 1121-22. Because the judgment here was entered in 1998 and renewed in 2008, Defendant’s motion for relief would be untimely even if brought under § 473(d). There is however law that suggests no time limit exists where a declaration of service is false even if legally compliant.
A judgment is void if the court rendering it lacked subject matter jurisdiction or jurisdiction over the parties. In re A.R., 203 Cal. App. 4th 1160, 1170 (2012). Subject matter jurisdiction relates to the inherent authority of the court involved to deal with the case or matter before it. Id. Lack of jurisdiction in this fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties. Id. In a broader sense, lack of jurisdiction also exists when a court grants relief which it has no power to grant. Id. Where, for instance, the court has no power to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites, the court acts without jurisdiction in this broader sense. Id. The consequences of an act beyond the court's jurisdiction in the fundamental sense differ from the consequences of an act in excess of jurisdiction. Id. An act beyond a court's jurisdiction in the fundamental sense is void; it may be set aside at any time and no valid rights can accrue thereunder. Id. In contrast, an act in excess of jurisdiction is valid until set aside, and parties may be precluded from setting it aside by such things as waiver, estoppel, or the passage of time. Id.
Here, Defendant contends the judgment is void because he was not served. He did not live at the address where the summons and FAC was left and mailed to. Thus, he was not served as the statute governing sub-service requires.
Courts have held that “a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. Hearn v. Howard (2009) 177 Cal. App. 4th 1193, 1200; Ellard v. Conway (2001) 94 Cal. App. 4th 540, 544.
Section 415.20 permits substitute service in lieu of personal delivery if “a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served.” Substitute service is effected 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.” Code Civ. Proc. § 415.20(b).
Plaintiff does not expressly dispute that Defendant was not living at 2152 Glenneyre in 2013 when service was purportedly made. Rather, he argues that the proof of service is facially valid - -that is, that the process server followed the rules, including diligence, for sub-service.
But Plaintiffs do not directly address the process server’s declared conclusion that 2152 Glenneyre was a “Bad address.” They acknowledge it only in terms of questioning the resident’s credibility since he (assuming it was the same person) at one point said Defendant had moved out a year ago and later said it was 2 years ago. Plaintiffs also imply that that occupant was in fact Defendant because he matched his physical description: “Gender: M AGE: 45 Height: 5' Weight: 175 Race: W Hair: Bald.” [ROA #29, ELF p. 1.] No evidence for this is provided. Nor is the physical description unique.
Plaintiffs also argue that sufficiency of service should be liberally construed because Defendant had actual notice of the lawsuit in time to respond. They rely on his objection to Plaintiffs seizing the yacht that was collateral for the money owed. [Johnson Decl., ¶¶ 6-7.] But it is not clear that the seizure of the yacht would inform Defendant that there was a lawsuit against him. Moreover, knowledge of a lawsuit is not enough. The Defendant must actually be served.
So long as the defendant receives actual notice of the lawsuit, substantial compliance with the California statutes governing service of summons generally will be held sufficient. (Gibble v. Car-Lene Research, Inc., 67 Cal. App. 4th 295, 313, 78 Cal. Rptr. 2d 892 (1st Dist. 1998); Dill v. Berquist Construction Co., 24 Cal. App. 4th 1426, 1436–1437, 29 Cal. Rptr. 2d 746 (4th Dist. 1994); compared Ramos v. Homeward Residential, Inc., 223 Cal. App. 4th 1434, 1443, 168 Cal. Rptr. 3d 114 (4th Dist. 2014) [mere receipt of the summons by an unknown employee of a corporation does not necessarily establish substantial compliance; the name of the person as well as the person’s title or capacity is required]) But, a complete failure to comply with statutory requirements will not accomplish service on a defendant, irrespective of whether the defendant received actual notice. (Summers v. McClanahan, 140 Cal. App. 4th 403, 414, 44 Cal. Rptr. 3d 338 (2d Dist. 2006); American Express Centurion Bank v. Zara, 199 Cal. App. 4th 383, 392, 131 Cal. Rptr. 3d 99 (6th Dist. 2011))
Cal. Civ. Ctrm. Hbook. & Desktop Ref. § 10:2 (2022 ed.) (emphasis added)
Here, Defendant’s evidence (and the declaration of due diligence) is that service was made at an address that was not his residence. This is not service in compliance with the statutes. To the extent Plaintiffs imply that 2152 Glenneyre was, in fact, Defendant’s residence in 2013, it is their burden to prove that and they did not.
In the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court's personal jurisdiction over a defendant.13 (§ 410.50.) When a defendant challenges that jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service. (Taylor–Rush v. Multitech Corp. (1990) 217 Cal.App.3d 103, 110, 265 Cal.Rptr. 672; Sheard v. Superior Court (1974) 40 Cal.App.3d 207, 211, 114 Cal.Rptr. 743; Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868, 54 Cal.Rptr. 302.)
Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439–1440.
The pivotal question is whether the defective service, and thus the void judgment, is apparent on its face. If not, Defendant’s motion would arguably have had to have been brought within 2 years of the judgment, which it was not.
A judgment “is considered void on its face only when the invalidity is apparent from an inspection of the judgment roll or court record without consideration of extrinsic evidence.” (Id. at p. 1021, 230 Cal.Rptr.3d 113.) When a default judgment has been taken, the judgment roll consists of “the summons, with the affidavit or proof of service; the complaint; the request for entry of default ..., and a copy of the judgment.” (§ 670, subd. (a).) If the invalidity can be shown only through consideration of extrinsic evidence, such as declarations or testimony, the order/judgment is not void on its face. (Pittman, at p. 1021, 230 Cal.Rptr.3d 113.)
Kremerman v. White (2021) 71 Cal.App.5th 358, 370 (emphasis added).
The proof of service for the judgment roll in this action, which includes the process server’s declaration of due diligence, states that service was made at a “bad address.” The process server’s information was the Defendant no longer lived at that address.
This shows that service was not made at Defendant’s residence. Thus, the judgment is void on its face. See Kremerman v. White (2021) 71 Cal.App.5th 358, 371–373.
Plaintiffs cite to Trackman v. Kenney(2010) 187 Cal.App.4th 175. But in that case, the defendant argued the proof of service was deficient because it did not identify the person with whom the summons and complaint was left by name, but as John Doe. This is not the equivalent of saying it was left at the wrong address. Trackman v. Kenney (2010) 187 Cal.App.4th 175, 183 [114 Cal.Rptr.3d 619, 624]
Because the proof of service shows that service was made at an address that was not Defendant’s residence, the court finds that the judgment is void on its face and grants Defendant’s motion to vacate the default and default judgment under Code Civ. Proc. § 472(d).