Judge: Mark E. Windham, Case: 21STLC06326, Date: 2023-10-12 Tentative Ruling
Case Number: 21STLC06326 Hearing Date: December 14, 2023 Dept: 26
Chase v. Seals, et al.
VACATE DEFAULT AND DEFAULT JUDGMENT;
QUASH SERVICE
(CCP §§ 418.10, 473(b), 473.5, 473(d))
TENTATIVE RULING:
Defendant Bryan Kennedy Seals’ Motion to Quash Service of
Summons of Complaint and Vacate Void Default Judgment is GRANTED. THE DEFAULT
ENTERED ON NOVEMBER 4, 2021 AND DEFAULT JUDGMENT ENTERED ON FEBRUARY 17, 2023
ARE HEREBY VACATED. SERVICE OF THE SUMMONS AND COMPLAINT AS SET FORTH IN THE
PROOF OF SERVICE FILED ON SEPTEMBER 15, 2021 IS HEREBY QUASHED.
ORDER TO SHOW CAUSE REGARDING FILING OF PROOF OF SERVICE OF
THE SUMMONS AND COMPLAINT IS SET FOR MARCH 14, 2024 AT 8:30 AM IN DEPARTMENT 26
IN THE SPRING STREET COURTHOUSE.
ANALYSIS:
On August 30, 2021, Plaintiff Lauren Michelle Chase (“Plaintiff”)
filed the instant action against Defendant Bryan Kennedy Seals (“Defendant”).
Plaintiff filed proof of substitute service of the Summons and Complaint on
September 15, 2021. When Defendant failed to file a responsive pleading,
Plaintiff obtained their default on November 4, 2021 and default judgment on
February 7, 2022.
On July 17, 2023, Defendant filed the instant Motion to
Quash Service of Summons and Vacate Void Default Judgment. Plaintiff filed an
opposition on September 29, 2023 and Defendant replied on October 4, 2023.
Discussion
Defendant’s evidentiary objections are ruled on as follows.
·
No. 1 to the opposition: overruled
·
No. 1 to Plaintiff’s Exh. A: sustained
·
No. 1-2 to Kellener declaration: sustained
·
No. 1 to Plaintiff’s Exh. B: sustained
·
Nos. 1-4 sustained
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 (b),
section 473.5, or Code of Civil Procedure section 473, subdivision (d).
Under Code of Civil
Procedure section 473, subdivision (b), 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 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 not timely filed within six months of
the February 17, 2022 default judgment. 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).
The Motion is also brought under Code of Civil Procedure
section 473.5, subdivision (a):
When service of a summons has not resulted
in actual notice to a party in time to defend the action and a default or
default judgment has been entered against him or
her in the action, he or she may serve and file a
notice of motion to set aside the default or default judgment and for
leave to defend the action. The notice of
motion shall be served and filed within a reasonable time, but in no event
exceeding the earlier of: (i) two years after entry of a default judgment
against him or her; or (ii) 180 days after service on him or
her of a written notice that the default or default judgment has
been entered.
(Code Civ. Proc., § 473.5, subd. (a).)
Additionally, the motion “shall be accompanied by an affidavit showing under
oath that the party's lack of actual notice in time to defend the action was
not caused by his or her avoidance of service or inexcusable neglect. The party
shall serve and file with the notice a copy of the answer, motion, or other
pleading proposed to be filed in the action.” (Code Civ. Proc., § 473.5, subd.
(b).)
Plaintiff’s opposition incorrectly contends that
the Motion is not timely under this statute. The Court finds Defendant’s Motion
is not subject to the 180-day deadline because no notice of entry of judgment
was served and the Motion was timely brought within two years of February 17,
2022. Defendant declares he lacked actual notice of this action until service
of the Application and Order for Appearance and Examination scheduled
for July 19, 2023. (Motion, Seals Decl., ¶¶6-8.) However, the
declaration does not state that Defendant’s lack of actual notice was not
caused by avoidance of service or inexcusable neglect. (Motion, Seals Decl.,
¶¶1-12.) This declartion is required before the Court can grant relief under
Code of Civil Procedure section 473.5.
Finally, Defendant 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).) The Motion points to Rogers v.
Silverman (1989) 216 Cal.App.3d 1114, 1116, which holds that the limitations
period contained in Code of Civil Procedure section 473.5 applies by analogy to
motions brought under Code of Civil Procedure section 473, subdivision (d). As
noted above, the Motion is timely under Code of Civil Procedure section 473.5.
Defendant contends that the entry of default is void due to defective service,
which was the same ground raised in Rogers. In support, Defendant
submits a declaration disputing that service occurred as stated in the proof of
personal service filed on September 15, 2021.
Here, the challenged proof of service is attested to by a
registered process server, and therefore, is entitled to a presumption of truth
in its contents. (Proof of Personal Service, filed 09/15/21, ¶7e.) The
burden to disprove the facts stated
in the proof of substitute service, therefore, falls first to Defendant. The proof of service states that Defendant
was sub-served by leaving the Summons and Complaint at 5000 Patagonia Court,
Los Angeles, California on September 13, 2021 with a person described as “Jane
Doe (60 yrs old, female, black, 150lbs, 5’6”, black hair, brown eyes).” (Proof
of Substitute Service, filed 09/15/21, ¶¶4-5.) Defendant declares that he did
not live at 5000 Patagonia Court on September 13, 2021. (Motion, Seals Decl.,
¶4.)
In Defendant’s
supplemental declaration, he states that at all times after January 14, 2021,
his address was 6803 Firmament Ave., Van Nuys, California. (Motion, Supp. Seals
Decl., ¶8.) In support, Defendant attaches a copy of the lease agreement for
6803 Firmament Avenue. (Id. at Exh. 6.) Defendant also attaches copies of
invoices from SoCal Gas for the premises as 6803 Firmament Avenue with his
name, dated July 2021, October 2021, and November 2021. (Id. at Exhs.
7-9.) This evidence carries Defendant’s burden to overcome the presumption of
truth in the proof of service.
This shifts the burden
of proof to Plaintiff to demonstrate that service of the Summons and Complaint
did take place as stated in the proof of service. As noted above, however,
Defendant’s objections to Plaintiff’s evidence regarding Defendant’s address are
sustained. No other admissible evidence is submitted in support of Plaintiff’s
opposition to demonstrate that 5000 Patagonia Court was a proper address for
service of the Summons and Complaint upon Defendant. Therefore, Defendant’s
request to vacate the entry of default and default judgment is granted.
Defendant also moves to quash service of the
Summons and Complaint pursuant to Code of Civil Procedure section 418.10. The
grounds to quash exist based on the purportedly defective service. To the extent that Defendant has now shown defective
service of the Summons and Complaint, the Court also grants the request to
quash service of the Summons and Complaint.
Conclusion
Defendant Bryan Kennedy Seals’ Motion to Quash Service of
Summons of Complaint and Vacate Void Default Judgment is GRANTED. THE DEFAULT
ENTERED ON NOVEMBER 4, 2021 AND DEFAULT JUDGMENT ENTERED ON FEBRUARY 17, 2023
ARE HEREBY VACATED. SERVICE OF THE SUMMONS AND COMPLAINT AS SET FORTH IN THE
PROOF OF SERVICE FILED ON SEPTEMBER 15, 2021 IS HEREBY QUASHED.
ORDER TO SHOW CAUSE REGARDING FILING OF PROOF OF SERVICE OF
THE SUMMONS AND COMPLAINT IS SET FOR MARCH 14, 2024 AT 8:30 AM IN DEPARTMENT 26
IN THE SPRING STREET COURTHOUSE.
Court clerk to give notice.