Judge: Mark A. Young, Case: 22SMCV02897, Date: 2023-03-23 Tentative Ruling
Case Number: 22SMCV02897 Hearing Date: March 23, 2023 Dept: M
CASE NO.: 22SMCV02897
MOTION: Motion
to Vacate Default/Default Judgment
HEARING DATE: 3/23/2023
Legal
Standard
Relief under section Code of Civil Procedure § 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].)
Analysis
Proof of Service of Motion
Defendant Shatandra Span moves to set aside and vacate the
default/default judgment taken against her. Defendant Span does not provide
proof of service of this motion. Despite
no proof of service, Plaintiff filed an opposition to this motion on March 21,
2023. If an opposing party appears at
the hearing and opposes the motion on its merits, any defects in service are
waived. (Carlton v. Quint (2000)
77 Cal.App.4th 690, 697-698.) Therefore,
the Court will continue its analysis of the matter.
Analysis
Defendant contends that she was not
properly served with the summons. “ ‘[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.)
The proof of service on file
indicates that a registered process server personally served Shatandra Span at
the subject premises on January 13, 2023, at 10:27 a.m. There is a presumption
of proper service of summons and complaint when service is performed by a
registered process server. Evidence Code § 647 states that 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.” (See
Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419,
1427 [§ 647 applies to eliminate the necessity of calling the process server as
a witness as trial].) “The effect of a presumption affecting the burden of
producing evidence is to require the trier of fact to assume the existence of
the presumed fact unless and until evidence is introduced which would support a
finding of its nonexistence. . .” (Id.) What is more, a tenant’s contention that he
or she had not been served with the three-day notice is not sufficient to overcome
the presumption affecting the burden of producing evidence to rebut the
presumption afforded by Evidence Code § 647.
(Id.)
Despite the presumption in favor of
the registered process server’s declaration, the Court notes a contradiction in
the service papers. First, in opposition to the ex parte, Plaintiff provided evidence
that the 3-day notice was served via posting and mailing. (Exs. 1-2.) Plaintiff,
however, obtained a Court-approved Application and Order to Serve Summons by
Posting on January 18, 2023, allowing Plaintiff to service summons via posted Notices
at the subject Premises. (Ex. 3.) Second, in the ex parte opposition, Plaintiff
contends that personal service was performed on February 8, 2023, but then only
provides proof of personal service on January 13, 2023.
In support
of her burden, Defendant relies solely on the declarations of herself and her
family. Notably, the court is “not required to accept [a] self-serving evidence
contradicting the process server's declaration.” (Rodriguez v. Cho
(2015) 236 Cal.App.4th 742, 751.) Span declares that she was never served with
summons and the complaint, stating that she was not home on January 13, 2023,
at 10:27 a.m. (Span Decl., ¶ 3.) She explains that Plaintiff had made an
appointment for a handyman to come to her apartment at 10:00 a.m. that date to
make some repairs, but she had important work errands to run that morning and
left at approximately 9:23 a.m. (Id.) She left the door open for the handyman,
and notes that her mother and sister were staying there, watching her daughter.
(Id.) She attaches corroborating text messages with Plaintiff at 10:32 a.m.,
where Span states that she “won’t be here [¶] But someone is here [¶] And the
door is open[.] (Id., Ex. 1, p. 3.) At 10:35 a.m., she texted Lord that she
“left already” but that the door was open for them. (Id.) With respect to other texts (Exh. 1, p. 2), Span
does not provide the time stamps of her response to the question asked at 9:05
a.m., confirming that she would be at the house that day.
Span’s sister, Lashawn Faint,
states that on January 13, 2023, she was visiting the premises, when at approx.
10:10 a.m. she answered a knock at the door. (Faint Decl., ¶ 2.) Faint states
that the woman at the door asked for Span, and that Faint responded that she
was not there. (Id.) The woman left, and
did not offer, give or leave any papers or packets for Span. (Id.) No other
person came at 10:27 a.m. (Id.) Span’s
mother, Darlene Blalark, states that she was also visiting that day to take
care of her granddaughter. (Blalark Decl., ¶ 3.) She confirms that Span was not
home shortly after 10:00 am, when there was a knock on the door. (Id.)
Based upon
the evidence submitted, the Court concludes would need to hear from the
Registered Process Server at the March 22, 2023, hearing. If that process server is not available, the
Court would grant the motion, set aside the judgment, and order Defendant to
file an answer by March 24, 2023. The
Court would also set the matter for trial.