Judge Lynne M. Hobbs, Case Number: 21STCV30052, Date: 2024-04-17 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 21STCV30052, Date: 2024-04-17 Tentative Ruling

Case Number: 21STCV30052 Hearing Date: April 17, 2024 Dept: 30

MARIO MORENO vs JACK VANDERHYDE, et al.

TENTATIVE

Defendants’ motion to set aside entry of default is GRANTED.

Legal Standard

CCP § 473(d) provides that “[t]he court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”

A defendant may move to set aside a default and default judgment based on improper service and lack of personal jurisdiction under Code Civ. Proc. §473(d). (Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1250.) A defendant need not bring a motion to quash prior to or in conjunction with a motion for relief from default and default judgment pursuant to Code Civ. Proc. §473(d). (Id.)

“Notice of the litigation does not confer personal jurisdiction absent substantial compliance with the statutory requirements for service of summons.” (MJS Enterprises, Inc. v. Superior Court (1984) 153 Cal.App.3d 555, 557 (citing Ault v. Dinner For Two, Inc. (1972) 27 Cal.App.3d 145, 148).) When the summons was not served in substantial compliance with the statutory requirements, the court does not obtain personal jurisdiction over the defendant. (See ibid.) A “default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. Under § 473(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.” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.) Where service is challenged, the burden is on the plaintiff to prove the facts requisite to an effective service. (Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1160.) Statutes “governing substitute service shall be ‘liberally construed to effectuate service and uphold jurisdiction if actual notice has been received by the defendant.’” (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1201.)

Discussion

Defendants move to set aside entry of default against them. They argue that Plaintiff did not serve the Defendant properly because Plaintiff served Defendants at an incorrect address where they did not reside. In connection with a motion to quash, each Defendant had filed a declaration attesting under penalty of perjury that they do not, and have never, resided at the address 11049 McCormick St Apt 306, North Hollywood, CA 91601-6201 as shown on the Proof of Service of Summons. (Vanderhyde Decls., ¶¶ 4-5.) Further, Defendant argues on January 9, 2024, Plaintiff filed Proofs of Service revealing proper service of process on Defendants, and that these Proofs of Service unequivocally establish that the initial service of the Summons and Complaint were not in compliance with California’s statutory procedures; thus, rendering the default entered to be void allowing Defendants’ Answer to be filed.

Here, on February 1, 2023, Plaintiff filed proof of service by substituted service indicating that Defendants were served with the summons and complaint by substituted service on January 22, 2023, at their home located at 11049 McCormick St Apt 306, North Hollywood, CA, 91601-6201.

CCP section 415.20 provides that “[i]f 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 other than a United States Postal Service post office box, in the presence of a competent member of the household . . . 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 . . . .” (Code Civ. Proc., § 415.20(b).)

A person’s dwelling house or usual place of abode is the place the person holds out as his or her principal residence and where he or she is mostly likely to receive actual notice. (Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1415-17.)

Defendants had submitted evidence showing that the address where they were purportedly served was not their dwelling, usual place of abode, usual place of business, or usual mailing address of Defendants. Plaintiff has the burden of proving otherwise. It is always the plaintiff’s burden to establish the existence of jurisdiction. (Dill v. Berquist Const. Co., Inc. (1994) 24 Cal.App.4th 1426, 1439-1440.) Thus, even though defendant is the moving party on a motion to quash or a motion to set aside a void judgment under CCP §473(d), the burden is on plaintiff to establish proper service. (Dill, 24 Cal.App.4th at 1439-1440.) Plaintiff has failed to file an opposition to meet his burden.

The Court lastly notes that in Plaintiff’s opposition to the motion to quash, Plaintiff argued that the address where Plaintiff initially served Defendants (11049 McCormick St Apt 306, North Hollywood, CA, 91601-6201) was correct because that address was listed on Jack’s driver’s license. Plaintiff filed as evidence a copy of Jack’s driver’s license, but the photo is blurry, and the address is unintelligible, although it does appear to say McCormick St. In any event, the later filed proof of service shows the address was partially correct; however, Jack’s apartment number is 206, and not 306. (1/9/24 Proof of Service as to Jack.)

As a result, the motion to set aside entry of default is granted due to service being void.

Defendants are ordered to give notice.