Judge Mark E. Windham, Case Number: 20STLC10473, Date: 2024-04-15 Tentative Ruling

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Defendant Enrique Preciado’s Motion to Vacate Judgment and Any Default, and
to Quash Any Writ of Execution is DENIED.

On December 16, 2020, Plaintiff Victor Saucedo (“Plaintiff”) filed the
instant action for civil rights violations against Defendant Enrique Preciado
(“Defendant”) with respect to a visit to Defendant’s restaurant at 2983 E.
Imperial Hwy., Lynwood, California. (Compl., ¶¶2-7.) Following Defendant’s
failure to file a responsive pleading, the Court entered their default on
February 23, 2021. Default judgment was entered on March 18, 2021.

Defendant filed the instant Motion to Vacate Judgment and Any Default, and
to Quash Any Writ of Execution on March 21, 2024. Plaintiff filed an opposition
on March 26, 2024.

The Motion is brought pursuant to different statutes, including Code of
Civil Procedure section 473, subdivision (b), section 128, subdivision (a)(8),
and section 86(b)(3). The Court will address each in turn.

Code of Civil Procedure section 473, subdivision (b) states that an
application for relief must be made within a reasonable time, 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 mistake, inadvertence,
surprise or neglect of the moving party or its attorney. (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).) This can be
corrected if Defendant submits a proposed responsive pleading by the hearing
date. (Code Civ. Proc., § 473, subd. (b); Carmel, Ltd. v. Tavoussi
(2009) 175 Cal.App.4th 393, 403.)

The instant Motion was filed more than six months after entry of default.
The six-month deadline is jurisdictional and not subject to tolling. (Manson,
Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.) Therefore,
Defendant cannot obtain relief under Code of Civil Procedure section 473,
subdivision (b).

Code of Civil Procedure section 128 states that a court has the power “[t]o
amend and control its process and orders so as to make them conform to law and
justice.” (Code Civ. Proc., § 128, subd. (a)(8).) Defendant cites this
authority in conjunction with the three-part test for equitable relief, which
requires them to show (1) a meritorious case; (2) a valid reason for not
defending the original case; and (3) diligence. (Citing Rappleyea v.
Campbell (1994) 8 Cal.4th 975.) Defendant presents evidence of meritorious
defense but not a valid reason for defending the original action. Defendant
disputes that they were served with the Summons and Complaint by declaring that
they were “not on the subject property” on the date of service but were at
home. (Motion, Preciado Decl., ¶12.) By “the subject property” Defendant means
the restaurant. (Motion, p. 5:8-13.)

The proof of service of the Summons and Complaint, filed on February 23,
2021, states that Defendant was personally served at 10420 Donlan Avenue,
Downey, California. (Proof of Service, filed 02/23/21, ¶¶4-5.) This is not the
address of Defendant’s restaurant, which is located at 2983 E. Imperial Hwy,
Lynwood, California. (Motion, Preciado Decl., ¶9.)

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.) 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.) Defendant, therefore, bears the burden of
demonstrating they were not personally served at 10420 Donlan Avenue. The
Motion does not address service at 10420 Donlan Avenue and only discusses
service at the restaurant. Therefore, Defendant has not demonstrated that the
facts in the proof of service are false such that their failure to timely
respond to the action was valid. These facts also demonstrate that Defendant
did not diligently move for relief because the requests for entry of default
and default judgment were both mailed to 10420 Donlan Avenue in 2021. The
Motion does not address Defendant’s knowledge, or lack thereof, of these
documents, which would have provided them notice of the action three years ago.
Finally, Plaintiff’s opposition attaches a declaration from the process server
who reiterates personally serving Defendant at a residence located at 10420
Donlan Avenue. (Opp., Lewis Decl., ¶¶3-5.)

Based on the foregoing, the Court finds Defendant is not entitled to relief
from the entry of default and default judgment under Code of Civil Procedure
section 128(a)(8).

Code of Civil Procedure section 86, subdivision (b)(3) states that a limited
civil case includes “A case to vacate a judgment or order of the court obtained
in a limited civil case through extrinsic fraud, mistake, inadvertence, or
excusable neglect.” (Code Civ. Proc., § 86, subd. (b)(3).) As discussed above,
however, Defendant has not demonstrated the existence of extrinsic fraud,
mistake, inadvertence, or excusable neglect. Therefore, relief is not warranted
under this statute.

Defendant Enrique Preciado’s Motion to Vacate Judgment and Any Default, and
to Quash Any Writ of Execution is DENIED. The stay of execution of
judgment is hereby lifted.