Judge Mark E. Windham, Case Number: 21STCV39107, Date: 2024-11-04 Tentative Ruling

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Bayou v. Goodnite Inn of Salinas, Inc., et al.

VACATE DEFAULT AND DEFAULT JUDGMENT

Defendant Goodnite Inn of Salinas, Inc.’s Motion to Vacate Default and Default Judgment is GRANTED. THE DEFAULT ENTERED ON NOVEMBER 16, 2022 AND DEFAULT JUDGMENT ON APRIL 16, 2024 ARE HEREBY VACATED.

On October 25, 2021, Plaintiff Addie Bayou (“Plaintiff”) filed the instant action for civil rights violations and infliction of emotional distress against Defendants Goodnite Inn of Salinas, Inc. (“Defendant Goodnite Inn”) and Brandy Lnu (“Defendant Lnu”). Following Defendant Goodnite Inn’s failure to file a responsive pleading, the Court entered its default on November 16, 2022 and default judgment on April 16, 2024.

Defendant Goodnite filed the instant Motion to Vacate Default and Default Judgment on October 4, 2024. Plaintiff filed an opposition on October 22, 2024 and Defendant replied on October 24, 2024.

Defendant Goodnite Inn moves to vacate the entry of default and default pursuant to Code of Civil Procedure section 473, subdivisions (b) and (d), or section 473.5.

First, Defendant Goodnite Inn moves to vacate the default on grounds that it is void, pursuant to Code of Civil Procedure section 473, subdivision (d), which 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).) As evidence that the default and judgment are void, Defendant Goodnite Inn submits the declaration of its agent for service of process, Nicholas Ho, who disputes being personally served with the Summons and Complaint. (Motion, Ho Decl., ¶¶3-8.)

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.)

Plaintiff’s proof of service of the Summons and Complaint, filed on October 18, 2022, however, is not attested to by a registered process server. (Proof of Service, filed 10/18/22, ¶7.) The burden, therefore, is upon Plaintiff to demonstrate that service was effectuated in accordance with the statutory requirements. The proof of service states that Defendant Goodnite Inn was personally served by delivering the papers to Ho, its agent for service of process, on October 14, 2022. (Id. at ¶¶3-5.) Plaintiff’s opposition submits the declaration of the process server, Timothy D. Thurman, who states “I remember quite clearly going to the Defendant’s office. It was difficult to find and was a very non-descript office. When | knocked on the door a lady with gray hair, about 60 years old answered the door. I asked if the place was the address for “Goodnite Inn”, and she replied that it was. I handed her the envelope with all the documents in it, including the Summons and Complaint. She asked what it was, and I replied that it was a lawsuit.” (Opp., Thurman Decl., ¶6.)

Thurman’s declaration demonstrates that the proof of personal service is false because it admits that the Summons and Complaint were not handed to Nicholas Ho, but to “a lady with gray hair, about 60 years old.” Unless it is Thurman’s contention that Nicholas Ho matches that description, it appears that the papers were not delivered to Defendant Goodnite Inn’s agent for service of process, as claimed in the proof of service. Nor does the purported service effectuated by the Sheriff’s Office constitute valid service, as Plaintiff claims. The proof of personal service filed on August 12, 2022 is facially invalid, as it does not indicate that the papers were delivered to an authorized agent, as required by the service statute, Corporations Code section 416.10. (Proof of Personal Service, filed 08/12/22, ¶¶2-4.) This defect was pointed out to Plaintiff when the Court rejected the request for entry of default on August 16, 2022. (Notice of Rejection, 08/16/22, p. 1.)

Therefore, the Court finds that service of the Summons and Complaint on Defendant Goodnite Inn is void and should be set aside under Code of Civil Procedure section 473, subdivision (d).