Judge: Mark A. Young, Case: 22SMCV00655, Date: 2023-01-06 Tentative Ruling
Case Number: 22SMCV00655 Hearing Date: January 6, 2023 Dept: M
CASE NAME: Kleinman, et al., v. Zhang, et al.
CASE NO.: 22SMCV00655
MOTION: Motion to Vacate Default/Default Judgment
HEARING DATE: 1/5/2023
Legal Standard
Relief under Code of Civil Procedure section 473(b) is either discretionary or mandatory. Where a party cannot obtain an attorney affidavit of fault, the party may seek discretionary relief under section 473(b) due to “mistake, inadvertence, surprise, or excusable neglect.” (CCP § 473(b).) A motion for discretionary relief must be made “within a reasonable time but in no instance exceeding six months after the judgment, dismissal, order, or proceeding was taken.” (Id.) If discretionary relief is granted, the court may in its discretion order the moving party to pay the costs, including attorney fees, incurred in obtaining the default. (Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816, 823; Vanderkous v. Conley (2010) 188 Cal.App.4th 111, 118-119.) If the motion for discretionary relief is granted, the court may order the offending attorney to pay monetary sanctions up to $1,000 to opposing parties, or up to $1,000 to the State Bar Client Security Fund, or “[g]rant other relief as is appropriate.” (CCP § 473(c)(1)(A), (B), (C).)
A motion for relief under section 473(b) “shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted. . .” (CCP § 473(b).) However, this requirement is not jurisdictional; substantial compliance may suffice. (Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 403 [finding substantial compliance where counsel offered proposed answer at motion hearing rather than serving it with moving papers].)
Code of Civil Procedure section 473.5 permits the court to vacate a default 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. The phrase actual notice means genuine knowledge and does not include constructive or imputed notice to the client. (Tunis v. Barrow (1986) 184 Cal.App.3d 1069, 1077.) “A defendant seeking vacation of a default judgment entered against him must further show that his lack of actual notice in time to defend the action was not caused by his inexcusable neglect or avoidance of service.” (Id. at 1077-1078; CCP § 473.5(c).) The motion must include “the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.” (CCP § 473.5.)
A proof of service filed by a plaintiff including the declaration of a registered process server gives rise to a presumption of the facts stated therein, thus requiring the defendant to produce evidence that he was not served. (American Exp. Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390.) It is well established that the court is “not required to accept [a] self-serving evidence contradicting the process server's declaration.” (Rodriguez v. Nam Min Cho (2015) 236 Cal.App.4th 742, 751.)
Analysis
Defendants Li Zhang and Jianhong Yang move to set aside and vacate the default judgment on the grounds that the Summons and Complaint were never validly served on the Defendants and the Defendants lacked actual notice of this lawsuit. Here, the proof of service indicates substitute service of Defendants at 245 Fowling Street, Play del Rey, California, 90293. Defendants argue that the service was conducted at an address Plaintiffs knew was not Defendants’ dwelling or usual place of abode, but, rather, was where Defendants’ property manager lived. Defendants assert that the “Jane Doe” was served at a property that has no bearing or relation to the Defendants themselves. While Plaintiffs relied on the Subject Lease for the Subject Property, which identified 245 Fowling as the Defendants address, Plaintiffs knew that Defendants have never resided or domiciled at 245 Fowling as they are residents and citizens of China. (Turner Decl., ¶¶ 2 – 4.)
Defendants only cite Code of Civil Procedure section 473.5 as a basis for relief, and do not request discretionary relief under section 473(b). Defendants fail to demonstrate their lack of “actual” knowledge of this lawsuit prior to entry of default and default judgment. Defendants both unequivocally declare that they were informed of this lawsuit on August 5, 2022, by previous counsel. (Zhang Decl., ¶ 5.) Plaintiffs filed a request for default judgment on August 5, 2022. Default was entered on August 16, 2022. Default judgment was entered on August 18, 2022. Furthermore, it is undisputed that Defendants’ counsel was corresponding for months with Plaintiffs’ counsel regarding this case. (See Swain Decl., ¶ 6, Exs. 2-4.) As such, there was two weeks wherein Defendants had genuine, undisputed knowledge of notice this lawsuit. Based on their counsel’s emails, Defendants apparently believed that they did not have to respond due to the improper service. Therefore, the Court cannot conclude lack of actual notice prevented Defendants from defending this suit.
Defendants also argue that the judgment is void on its face. (CCP § 473(d).) “‘[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.] Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. [Citation.]’ “ (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) “Under section 473, subdivision (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.) Here, the record demonstrates that Plaintiffs did not serve Defendants at their usual place of business or abode, as required by substituted service. (CCP §415.20(b).) The record indicates that Plaintiffs knew that this was not Defendants’ usual place of business or abode. Thus, the Court never obtained personal jurisdiction over Defendants and the resulting default and default judgment are void. Moreover, if it had been requested, the Court would have granted discretionary relief under 473(b) under the facts of this case.
Accordingly, Defendants’ motion is GRANTED. Defendants to file their proposed motion to quash within five days.