Judge Lynne M. Hobbs, Case Number: 22STCV18170, Date: 2024-04-08 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 22STCV18170, Date: 2024-04-08 Tentative Ruling

PLEASE NOTE:

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.

Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at SSCdept30@LACourt.org indicating the party's intention to submit.

Include the word "SUBMITS" in all caps and the case number in the subject line of the email and in the body provide the date and time of the hearing, your name, your contact information, the party you represent, whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, or non-party.

If a party submits but still intends to appear at the hearing, include the words "SUBMITS BUT WILL APPEAR" in the subject line of the email.

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.

Unless all the parties have submitted, the Court will hear argument from any party that appears at the hearing and wishes to argue. The Court may change its tentative as a result of the argument and adopt the changed tentative as the final order at the end of that hearing, even if all the parties are not present.

Be advised that after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of said motion and may adopt the tentative ruling as the order of the Court.

Case Number: 22STCV18170 Hearing Date: April 8, 2024 Dept: 30

MAURYA KRISTA, et al. vs DENISE PICKERING MELAS, et al.

TENTATIVE

Specially Appearing Cross-Defendant’s motion to quash service of summons and cross-complaint and motion to set aside entry of default is GRANTED. Specially Appearing Cross-Defendant is ordered to give notice.

Legal Standard

Motion to Quash Service of Summons

“A defendant . . . may serve and file a notice of motion for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her. . . .” (Code Civ. Proc., § 418.10(a).) “[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.]” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) “[T]he filing of a proof of service creates a rebuttable presumption that the service was proper” but only if it “complies with the statutory requirements regarding such proofs.” (Id. at 1441-1442.) When a defendant moves to quash service of the summons and complaint, the plaintiff has “the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.” (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868.) “A court lacks jurisdiction over a party if there has not been proper service of process.” (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.)

Motion to Set Aside Default under CCP section 473(d)

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.”

“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

Specially Appearing Cross-Defendant Wilson (“Wilson”) moves to quash service of the summons and the cross-complaint on grounds that Defendant was not validly served.

I. Motion to Quash

Here, Cross-Complainant filed a proof of service indicating that service on Wilson was made on August 13, 2023, at his home located at 12409 Texas Ave., Unit 1, Los Angeles, CA 90025. 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).)

Wilson argues the substituted service was improper because he had moved out of that residence at the end of May 2023.

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.) Here, William T. Dawson, the property manager at the Texas Avenue address, states that Wilson was no longer a tenant in August of 2023, and he moved out at the end of May 2023. (William Decl., ¶¶ 3-4.)

As Wilson has filed this motion and submitted evidence showing that the address where Wilson was purportedly served was not the dwelling, usual place of abode, usual place of business, or usual mailing address of Defendant, Cross-Complainant has the burden of proving otherwise. However, Cross-Complainant has not filed an opposition and therefore, has not met her burden.

Accordingly, the motion to quash service of summons and cross-complaint is GRANTED.

II. Motion to Set Aside Default

Wilson also moves to set aside entry of default, arguing that entry of default is void as proper service was never rendered to Wilson and/or on the ground that Wilson was not served with a statement of damages or advised the demand of complaint prior to entry of default.

“[A] trial court may grant a motion to set aside [a] judgment as void only if the judgment is void on its face.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441.) “A judgment may be void on the face of the record or void for lack of proper service.” (Yeung v. Soos (2004) 119 Cal.App.4th 576, 582.) “A judgment is void on the face of the record when it appears on the face of the record that the trial court had no power to enter the default or the default judgment.” (Id.)

CCP section 425.11 requires, in personal injury and wrongful death actions, a statement of damages to be served in the same manner as a summons before a default may be taken. (See Code Civ. Proc., § 425.11(c), (d)(1).)

The Court notes there is no proof of service indicating a statement of damages was served on Cross-Defendant. As a statement of damages was not served, the default is void. (See Plotitsa v. Superior Court (1983) 140 Cal.App.3d 755, 759-61.)

Accordingly, the motion to set aside entry of default is GRANTED.