Judge: Lisa R. Jaskol, Case: 21STCV31841, Date: 2024-01-29 Tentative Ruling

All parties are urged to meet and confer with all parties concerning this tentative ruling to see if they can reach an agreed-upon resolution of their matter.  If you are able to reach an agreement, please notify the courtroom staff in advance of the hearing if you wish to submit on the tentative ruling rather than argue the motion by notifying the court by e-mailing the court at: SSCDEPT28@lacourt.org.  Include the word "SUBMITS" in all caps and the Case Number in the Subject line.  In the body of the email, please provide the date and time of the hearing, your name, your contact information, the party you represent, and whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, intervenor, or non-party, etc.

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Case Number: 21STCV31841    Hearing Date: January 29, 2024    Dept: 28

Having considered the moving papers, the Court rules as follows. 

BACKGROUND 

On August 27, 2021, Plaintiff Olivia Morris (“Plaintiff”) filed this action against Defendants Domenick Maccia (“Defendant”) and Does 1-50 for negligence. 

On November 21, 2023, the clerk entered Defendant’s default. 

On December 21, 2023, Defendant, specially appearing, filed a motion to set aside entry of default to be heard on January 29, 2024.  Plaintiff has not filed an opposition. 

No trial date is currently set. 

PARTY’S REQUEST 

Defendant requests that the Court set aside the default. 

LEGAL STANDARD 

          Code of Civil Procedure section 473, subdivision (d), provides in part: 

“The court . . .may, on motion of either party after notice to the other party, set aside any void judgment or order.” 

(Code Civ. Proc., § 473, subd. (d).) 

          Evidence Code section 647 provides: 

          “The return of a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.” 

(Evid. Code, § 647.)  

“Evidence Code section 647 provides that a registered process server's declaration of service establishes a presumption that the facts stated in the declaration are true.” (Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750 (Rodriguez).) 

DISCUSSION 

On June 15, 2023, Plaintiff filed a proof of service showing substituted service of the summons, complaint, statement of damages, and other documents on Defendant at an address in Texas on June 12, 2023.  The process server who signed the proof of service was not a registered process server. 

Defendant has submitted a declaration stating that at all relevant times he lived in Florida and he never received the summons or complaint in the mail at his Florida residence.  He states that the Texas address has never been his place of residence, although he stores a recreational vehicle there.  He has never received the documents mailed to the Texas address and he does not know the person named “Jenny” who, according to the proof of service, accepted the documents on his behalf there. 

Even assuming the proof of service established a presumption that the facts stated in the declaration of service are true, Defendant has rebutted the presumption.  (See Rodriguez, supra, 236 Cal.App.4th at p. 750.)  The Court finds that Plaintiff did not properly serve the summons and complaint on Defendant.  As a result, the default is void.  The Court grants Defendant’s request to set aside the November 21, 2023 default under Code of Civil Procedure section 473, subdivision (d). 

CONCLUSION 

The Court GRANTS the motion of Defendant Domenick Maccia to set aside the November 21, 2023 default. 

The Court sets an Order to Show Cause Re: Dismissal for Failure to Serve Summons on Defendant for March 27, 2024, at 8:30 a.m. in Department 28 of the Spring Street Courthouse.

The Court takes the March 13, 2024 Order to Show Cause Re: Failure to File Default Judgment off calendar. 

Moving party is ordered to give notice of this ruling. 

Moving party is ordered to file the proof of service of this ruling with the Court within five days.