Judge: Marcella O. Mclaughlin, Case: 37-2013-00039787-CL-PO-CTL, Date: 2023-12-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 07, 2023

12/08/2023  01:30:00 PM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Limited  PI/PD/WD - Other Motion Hearing (Civil) 37-2013-00039787-CL-PO-CTL STATE FARM GENERAL INS CO VS. LEFFLER [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Vacate, 10/31/2023

The motion to vacate the renewal of judgment is DENIED.

Defective service of process is a defense which may be raised on a motion to vacate renewal of a judgment under Code of Civil Procedure section 683.170. Fidelity Creditor Service, Inc. v. Browne (2001) 89 Cal.App.4th 195, 203. The moving party bears the burden of proving, by a preponderance of the evidence, that he or she is entitled to relief. Id. at 199.

In this case, the proof of service shows that defendant was served via substitute service at 6131 Rancho Mission Road, Unit 304 in April 2013. ROA 9. This creates a rebuttable presumption of valid service.

Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.

Defendant argues that the Rancho Mission Road property was not a proper place for substitute service because he sold the property to Richard Kiser in November 2012 and was no longer living there in April 2013. (See Leffler Decl., ¶¶ 8-12; Exs. B, C.) Code of Civil Procedure section 415.20(b) provides for substitute service at four locations – specifically, 'the person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United State Postal Service post office box.' Here, while defendant's evidence establishes that the Rancho Mission Road property was not defendant's 'dwelling house' or 'usual place of abode,' it has no bearing on whether the property was his 'usual mailing address.' Code Civ. Proc. § 415.20(b).

By contrast, plaintiff submitted evidence showing that defendant was still receiving mail at the Rancho Mission Road property as of late February 2013. (Reese Decl., ¶ 11; Ex. B.) There is also evidence that defendant did not change his mailing address with the USPS until January 2014. (Reese Decl., ¶ 17.) Defendant has not refuted any of this evidence. Nor does dispute that he was receiving mail at the Rancho Mission Road property in April 2013. His objections to plaintiff's evidence – which the court considered despite their improper form – lack merit and are overruled. See Evid. Code §§ 702, 1280; see also Preis v. American Indemnity Co. (1990) 220 Cal.App.3d 752, 759.

In sum, the court finds that defendant has failed to rebut the presumption of proper service and thus has not met his burden of proving by a preponderance of the evidence that he is entitled to relief under section 683.170.

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