Judge: Lee W. Tsao, Case: 22NWCV00352, Date: 2023-11-16 Tentative Ruling

Case Number: 22NWCV00352    Hearing Date: January 4, 2024    Dept: C

NATIONAL COMMERCIAL RECOVERY, INC. v. NAVPEAK INC.

CASE NO.:  22NWCV00352

HEARING:  01/04/24

#4

     I.        Defendant KENNETH REDDING’s Motion to Set Aside Default and Default Judgment is GRANTED.

    II.        Defendant KENNETH REDDING’s Motion to Quash Service of the Summons and Complaint is GRANTED.

Moving Party to give Notice.

Moton to Set Aside Default and Default Judgment

Defendant KENNETH REDDING’s Request for Judicial Notice is GRANTED as to the existence o of the documents, but not as to any hearsay statements contained therein. (Cal. Ev. Code §452.)

Defendant KENNETH REDDING (“Redding”) argues that the default judgment should be set aside pursuant to CCP §§473(d), 473(b), and/or 473.5.  Redding argues that the proof of service filed on October 17, 2022, indicating that Redding was served via substitute service at 3077 Coolidge Ave., Costa Mesa, CA 92626 is insufficient because Redding has resided in Arizona since April 2022. (See Redding Decl., ¶2.)

In Opposition, Plaintiff argues that Redding has failed to carry his burden of demonstrating that he is entitled to relief from default.

CCP §415.20 governs substitute service. “If 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…, 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…, 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.” (CCP §415(b).)

Contrary to the arguments raised in Opposition, Redding has shown that he was never served with the summons and complaint in this action. Redding declares, under penalty of perjury: “I have been a resident of the State of Arizona since I retired in April 2022. I was hospitalized for several months in late 2022 and was recovering from surgeries for a heart valve replacement and kidney removal due to cancer…. [¶] At the time of purported substitute service of the Summons and Complaint on me for this action on October 13, 2022, I did not reside at 3077 Coolidge Avenue, Costa Mesa, CA 92626 (the “Coolidge Property”). I have not used the Coolidge Property as my residence, as my business address, or as a mailing address for me at any time since I moved to the State of Arizona in April 2022. My only mailing address since my move… has been my new residence in the State of Arizona. At the time of the Summons and Complaint was purportedly served on me for this action, the Coolidge Property was not my dwelling house, usual place of abode, usual place of business, or usual mailing address.” (Redding Decl., ¶¶2-3.) “I do not know of any person referenced as ‘Jane Doe’ in the Proof of Service of Summons regarding me….” (Id. ¶4.)

At any time, “[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).) “Thus, a default judgment entered against a defendant who has not been served with a summons in the manner prescribed by statute is void.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) Redding did not reside at the Coolidge Property at the time of purported service, and the Coolidge Property did not serve as Redding’s mailing address at the time of purported service.

The Court finds that service was never accomplished that the default and default judgment are void under CCP §473(d).

Motion to Quash Service of Summons

As indicate above, the Court finds that service of summons on Redding is defective in that personal service did not take place, and substituted service was not delivered to Rediding’s abode, usual place of business, or usual mailing address.

The Motion is GRANTED.