Judge Mark E. Windham, Case Number: 18STLC13117, Date: 2023-11-07 Tentative Ruling

If you desire to submit on the tentative ruling, you may do so by e-mailing Dept. 26 at the Spring Street Courthouse until the morning of the motion hearing.

The e-mail address is SSCdept26@lacourt.org

The heading on your e-mail should contain the case name, number, hearing date, and that you submit. The message should indicate your name, contact information, and the party you represent. Please note, the above e-mail address is to inform the court of your submission on the tentative ruling. All other inquiries will not receive a response.

If there are no appearances by either side and no submission on the Court's tentative ruling, the matter will be placed OFF CALENDAR.

Due to overcrowding concerns of COVID-19, all parties shall make every effort to schedule a remote appearance via LACourtConnect (https://my.lacourt.org/laccwelcome) for their next hearing. The parties shall register with LACourtConnect at least 2 hours prior to their scheduled hearing time.

ACIC v. Rechevskiy, et al.

VACATE DEFAULT AND DEFAULT JUDGMENT; QUASH SERVICE; DISMISS

Defendant Dmitriy Rechevskiy’s Motion to Vacate Judgment, Quash Service of Summons, and Dismiss Case is DENIED.

On October 17, 2018, Plaintiff American Contractors Indemnity Company (“Plaintiff”) filed the instant action against Defendant Dmitriy Rechevskiy (“Defendant”). Plaintiff filed proof of substitute service of the Summons and Complaint on December 19, 2018. When Defendant failed to file a responsive pleading, Plaintiff obtained their default on January 7, 2019 and default judgment on March 7, 2019.

On August 1, 2023, Defendant appeared at a hearing on a claim of exemption and filed the claim of exemption on August 31, 2023, which the Court granted in part. (Minute Order, 08/31/23.) Defendant filed a motion to vacate judgment, quash service, and dismiss action on September 5, 2023, to which Plaintiff filed an opposition on September 21, 2023. Defendant withdrew the motion on September 26, 2023.

Defendant filed the instant Motion to Vacate Judgment, Quash Service of Summons, and Dismiss Case on September 28, 2023. Plaintiff filed an amended proof of substitute service on the same date and an opposition on October 24, 2023. Defendant filed a reply on October 31, 2023. The Motion was initially set for hearing on November 7, 2023 and continued to November 29, 2023. (Minute Order, 11/07/23.) The hearing was again continued to December 11, 2023. (Minute Order, 11/29/23.)

Defendant moves to quash service of the Summons and Complaint pursuant to Code of Civil Procedure section 418.10. Defendant moves to vacate the entry of default pursuant to Code of Civil Procedure section 473, subdivision (d) or on equitable grounds. Code of Civil Procedure section 473, subdivision (d) states that “[t]he court may, .... on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc., § 473, subd. (d).) The Motion points to County of San Diego v. Gorham (2010) 186 Cal. App.4th 1215, which holds that where there is a lack of jurisdiction over the person, which is fundamental, “an ensuing judgment is void, and ‘thus vulnerable to direct or collateral attack at any time.’” (County of San Diego v. Gorham (2010) 186 Cal. App.4th 1215, 1225.) In Gorham, the Court of Appeals found that there were exceptional circumstances: the plaintiff allowed evidence to be considered that demonstrated the proof of service of the summons was false. (Id. at 1231.) In particular, the record had “evidence of an intentional false act that was used to obtain fundamental jurisdiction over Gorham.” (Id. at 1231-1232.)

Although Defendant contends there is no time limit to bring a motion for relief under Code of Civil Procedure section 473, subdivision (d), this is not correct. In City of Los Angeles v. Morgan (1951) 105 Cal.App.2d 726, the Court of Appeals ruled: “if the invalidity of the judgment is apparent by an inspection of the judgment or the judgment roll it may be vacated upon motion at any time after its entry. People v. Greene, 74 Cal. 400, 16 P. 197. If, however, the invalidity is not thus apparent, it may be set aside by motion, if such motion is filed within a reasonable time, i. e., not longer than the time set forth in Code Civ. Proc., sec. 473.” (City of Los Angeles v. Morgan (1951) 105 Cal.App.2d 726, 730.) Although Code of Civil Procedure section 473, subdivision (d) contains no express time limit, it has been held to be subject to the two-year limit set forth in Code of Civil Procedure section 473.5. (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180 [“Where a party moves under section 473, subdivision (d) to set aside “a judgment that, though valid on its face, is void for lack of proper service, the courts have adopted by analogy the statutory period for relief from a default judgment” provided by section 473.5, that is, the two-year outer limit.”].)

Now that more than two years have passed since entry of default judgment, the judgment can only be vacated if shown to be facially void, or on equitable grounds where there has been extrinsic fraud or mistake. (Id. at 181.) Defendant contends that the address at which substitute service was made—533 Balboa Street, San Francisco, California—was not his residence nor work address at the time of service. (Motion, Rechevskiy Decl., ¶¶5-8.) Plaintiff agrees that the 533 Balboa Street address listed on the proof of service was not proper but contends that sub-service was actually accomplished at Defendant’s residence at 430 7th Avenue, San Francisco, California. (Opp., Murray Decl., ¶¶3-5 and Exhs. 5-7.) According to Plaintiff, the proof of service filed on December 19, 2018 inadvertently listed 533 Balboa Street as the service address but the documentation from its attorney service in 2018 demonstrates that service was actually made at 430 7th Avenue. (Ibid.) While the proof of service filed with the Court on December 19, 2018 listed 533 Balboa Street as a clerical error, Plaintiff argues this error had no effect on the validity of the substitute service upon Defendant.

Defendant’s moving declaration disputes that he was never served with the summons and complaint, and claims he only learned of this action when funds from his bank account were levied on July 6, 2023. (Motion, Rechevskiy Decl., ¶¶2-4.) Defendant also contends in reply that the Court cannot consider Plaintiff’s evidence of service to 430 7th Avenue because it is inadmissible hearsay and because the Court is limited to the face of the record in ruling on this Motion. The Court disagrees. Plaintiff filed an amended proof of service on September 28, 2023 that is part of the face of the record. “A judgment is ... void on its face when the invalidity is apparent upon an inspection of the judgment-roll.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441. When a default judgment has been entered, the judgment roll consists of “the summons, with the affidavit or proof of service; the complaint; the request for entry of default ..., and a copy of the judgment.” (Code Civ. Proc., § 670, subd. (a). It has long been the law that the Court can allow the filing of an amended proof of service because “it is now well settled that it is the fact of service and not the proof of service which determines the validity or invalidity of a judgment.” (City of Salinas v. Luke Kow Lee (1933) 217 Cal. 252, 254 [citing Herman v. Santee (1894) 103 Cal. 519, 523-25].)

Defendant’s reply does not address the amended proof of service, which is attested to by the process server under penalty of perjury. (Amended Proof of Service, filed 09/28/23.) Defendant admitted under penalty of perjury that the 430 7th Avenue address was his residence on the date of service. (Motion, Rechevskiy Decl., ¶8.) Accordingly, Defendant has not shown that the judgment is facially void or that there are grounds to vacate the judgment due to extrinsic mistake or fraud.

Therefore, Defendant Dmitriy Rechevskiy’s Motion to Vacate Judgment, Quash Service of Summons, and Dismiss Case is DENIED.