Judge Lisa K. Sepe-Wiesenfeld, Case Number: 24SMCV01435, Date: 2024-11-20 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 24SMCV01435, Date: 2024-11-20 Tentative Ruling

Defendant Chloe Ding’s Motion for Relief from Default and for Leave to Respond/Defendant Action is GRANTED. Defendant Chloe Ding may obtain a proper hearing reservation date for her demurrer and motion to strike in the Court’s reservation system.

Defendant Jiayi Xu (“Xu”) requests judicial notice of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention). Xu’s request is GRANTED pursuant to Evidence Code section 452, subdivision (h).

Xu moves the Court for an order setting aside the default entered against her on June 28, 2024 on the ground that Plaintiff Annette Rubin (“Plaintiff”) failed to properly serve her, and actual notice was not given to Xu in time to defend the action.

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.

Further, “a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute,” thus failing to establish personal jurisdiction over the defendant, “is void.” (Dill v. Bernquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) Pursuant to Code of Civil Procedure section 473, subdivision (d), the Court may “set aside any void judgment or order,” and “a void judgment may be set aside at any time” (Milrot v. Stamper Medical Corp. (1996) 44 Cal.App.4th 182, 188).

The proof of service filed on May 30, 2024, indicates that Xu was served by personal service on May 23, 2024 at 7021 Sand Point Way, NE Unit B222, in Seattle. The proof service was not completed by a registered California process server.

Xu provides a declaration stating that she resides in China, the last time she entered the unit States was on May 18, 2023, when she visited New York before departing on August 17, 2023, and she provides a copy of her travel history. (Mot., Xu Decl. ¶¶ 4-6.) She states that she did not learn of the action until July 17, 2024, when she received a Statement of Damages by email. (Mot., Xu Decl. ¶ 9.) Xu states that she had not heard of the Seattle address before reviewing the proof of service, she was in China on the date of the purported service, she has never been to Seattle, and Plaintiff did not make her aware of this action despite having her email address. (Mot., Xu Decl. ¶¶ 13-20.)

The Court finds that Xu’s account is credible, Plaintiff provides no evidence to dispute Xu’s account, and there is no evidence that Xu was properly served in a code-compliant manner. Accordingly, Defendant Jiayi Xu’s Motion for Relief from Default and for Leave to Respond/Defendant Action is GRANTED.

Defendant Chloe Ding (“Ding”) requests judicial notice of the proof of service filed on June 28, 2024, purporting to show service upon Ding, and the default entered against her on the same date. Ding’s request is GRANTED pursuant to Evidence Code section 452, subdivision (d).

Ding moves the Court for an order setting aside the default entered against her on June 28, 2024 on the ground that the default was the result of excusable neglect because she did not know that the summons and complaint were related to a new action and required attention because she has difficulty reading and understanding documents written in English, as Chinese is her first language, and she believed the documents were related to an existing unlawful detainer action against Plaintiff. (Mot., Ding Decl. ¶¶ 4, 9-13.) Ding also argues that she did not have actual notice of the action until after default had been entered. The proof of service filed on June 18, 2024 indicates that Ding was served by personal service by a registered California process server on May 22, 2024 in Temple City. Ding does not dispute that she was served.

Code of Civil Procedure section 473, subdivision (b), provides that “[t]he court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” Further, “[a]pplication for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”

Ding has provided a copy of a proposed demurrer and motion to strike she intends to file if the default is set aside. (Mot., Ding Decl. ¶ 20.) Further, the motion to vacate the default was timely filed, as the motion was filed on August 6, 2024, after the default was entered on June 28, 2024. The Court finds that Ding has properly demonstrated excusable neglect and mistake in not answering the complaint, as she credibly misunderstood the nature of the documents. Thus, Defendant Chloe Ding’s Motion for Relief from Default and for Leave to Respond/Defendant Action is GRANTED. Defendant Chloe Ding may obtain a proper hearing reservation date for her demurrer and motion to strike in the Court’s reservation system.