Judge Mark E. Windham, Case 19STLC01395 2022-12-13 Tentative Ruling

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Torosian, et al. v. Perez, et al.

VACATE DEFAULT AND DEFAULT JUDGMENT; QUASH SERVICE

Defendants Daisy Perez and Jorge Perez’s Motion to Vacate Default and Default Judgment and Motion to Quash Service is DENIED.

On February 7, 2019, Plaintiffs Albert Torosian and Galina Nataloukhina (“Plaintiffs”) filed the instant action for motor vehicle negligence against Defendants Daisy Perez and Jorge Perez (“Defendants”). Plaintiffs filed proofs of substitute service of the Summons and Complaint on April 17, 2019. When Defendants failed to file a responsive pleading, Plaintiff obtained their default on May 12, 2020 and default judgment on July 8, 2021.

On November 1, 2022, Defendants filed the instant Motion to Vacate Default and Default Judgment, and Motion to Quash Service. No opposition has been filed to date.

Defendants move to quash service of the Summons and Complaint and vacate the entry of default and default judgment on the grounds that they were never served with the Summons and Complaint, and therefore, the judgment was entered due to their surprise. (Citing Code Civ. Pro., § 473, subd. (b); § 418.10].) The Court must first consider the request to vacate the default prior to the request to quash service of the Summons and Complaint. (See Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1301 [entry of default cuts off the defendant’s right to take further affirmative steps such as filing a pleading or motion].)

The request to vacate default is brought pursuant to Code of Civil Procedure, section 473, subdivision (b). Under this statute, an application for relief must be made no more than six months after entry of the order from which relief is sought and must be accompanied by an affidavit of fault attesting to the moving party’s mistake, inadvertence, surprise or neglect. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) The motion must also be accompanied by a copy of the moving defendant’s proposed pleading. (Code Civ. Proc., § 473, subd. (b).)

The Motion was not timely filed within six months of default judgment. Default judgment was entered on July 8, 2021 but this Motion was filed almost 16 months later on November 1, 2022. The six-month deadline is jurisdictional and not subject to tolling. (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.) Therefore, Defendants’ request to vacate the default judgment is denied.

Where service is challenged, the burden is on the plaintiff to prove the facts requisite to an effective service. “When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.’” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413; see also Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1160.) However, a proof of service containing a declaration from a registered process server invokes a rebuttable presumption affecting the burden of producing evidence of the facts stated in the return. (Cal. Evid. Code, § 647; see American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390.)

Here, the challenged proofs of service are not attested to by a registered process server, and therefore, are not entitled to a presumption of truth in their contents. (Proofs of Substitute Service, filed 04/17/19, ¶7e.) The burden to prove the facts requisite to an effective service, therefore, falls to Plaintiffs. Since Plaintiffs have not filed an opposition to the instant Motion, they have not carried their burden to demonstrate proper service of the Summons and Complaint.

Finally, regarding the timing of the Motion to Quash, “[a] defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: To quash service of summons on the ground of lack of jurisdiction of the court over him or her.” (Code Civ. Proc., § 418.10, subd. (a)(1), emphasis added.) A defendant has 30 days after the service of the summons to file a responsive pleading. (Code Civ. Proc., § 412.20, subd. (a)(3).) To the extent that Plaintiffs have not shown proper service of the Summons and Complaint, the Court finds good cause for the timing of the Motion to Quash. If the Motion to Quash was properly before the Court, there would be grounds to grant it and quash the substitute service on Defendants. However, the Court cannot grant the Motion to Quash while Defendants remain in default.

Defendants Daisy Perez and Jorge Perez’s Motion to Vacate Default and Default Judgment and Motion to Quash Service is DENIED.