Judge: Lee S. Arian, Case: 21STCV15998, Date: 2025-05-28 Tentative Ruling

Case Number: 21STCV15998    Hearing Date: May 28, 2025    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Background

On April 28, 2021, Plaintiff filed this action. Service was alleged to have been effected through personal service on Defendant Nicolas Dourassoff in 2023 and 2024 at 524 Chapel Lake Drive, Apt. 102, Virginia Beach, Virginia. On February 14, 2025, default  was entered against Defendant. Default judgment has not been entered. Defendant now moves to vacate the default on the ground that he was never personally served in 2023 or 2024. Defendant states he has never been to Virginia Beach and has been residing in France during the relevant time period.

Legal Standard

“Lack of jurisdiction in its most 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.” (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660.) “When a court lacks jurisdiction in a fundamental sense, an ensuing judgment is void, and ‘thus vulnerable to direct or collateral attack at any time.’” (Ibid.) “A default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.” (Kremerman v. White (2021) 71 Cal.App.5th 358, 371.)

Discussion

Although Plaintiff filed proofs of service stating that personal service was effected on March 16, 2023, and November 13, 2024, both at 524 Chapel Lake Drive, Defendant provides substantial evidence that these statements are false. Defendant declares that he has never resided at the address listed, has not visited Virginia Beach at any time, and has been living and working in France since February 2022. (Dourassoff Decl., ¶¶ 4–6.) Defendant also provides travel records and receipts showing his physical presence in France on the exact dates service was purportedly made. (Dourassoff Decl., ¶¶ 8–13, Exs. 1–6.) The Court finds this evidence credible and sufficient to rebut the presumption of validity ordinarily afforded to a proof of service. (See Dill v. Berquist Constr. Co. (1994) 24 Cal.App.4th 1426, 1441–1442.) Plaintiff did not file an opposition refuting Defendant’s claims.

Because Defendant was never properly served, the Court lacked personal jurisdiction to enter default. The February 14, 2025 default is therefore void and is vacated.

As to Defendant’s request to dismiss this action for failure to effect service within three years of filing, Code of Civil Procedure section 583.240, subdivision (d), provides that the three-year period excludes time when “[s]ervice, for any other reason, was impossible, impracticable, or futile due to causes beyond the plaintiff's control.” The Court sees no reason why Plaintiff would have attempted to re-serve the summons and complaint if she believed personal service had already been effected. Although Plaintiff later served Defendant with the Statement of Damages, that was not part of the 2023 service.

Defendant argues that Plaintiff committed fraud in connection with service of process, but such a finding requires concrete evidence. At this stage, Defendant’s fraud allegation remains speculative. It is certainly possible that Plaintiff committed fraud, but it is also possible that the process server, who, though apparently not a professional process server, nonetheless charged a fee for service, lied about effecting personal service without any input from Plaintiff.  Accordingly, the Court declines to dismiss the action under Code of Civil Procedure sections 583.210 and 583.250.

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’s 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.