Judge Mark E. Windham, Case Number: 23STLC03267, Date: 2024-08-15 Tentative Ruling

Judge: Mark E. Windham, Case: 23STLC03267, Date: 2024-08-15 Tentative Ruling

Case Number: 23STLC03267 Hearing Date: August 15, 2024 Dept: 26

Kim v. Perez, et al.

VACATE DEFAULT AND DEFAULT JUDGMENT

(CCP §§ 473.5, 473(d), equity)

TENTATIVE RULING:

Defendant Jake Perez’s Motion to Vacate Default and Default Judgment is GRANTED. ORDER TO SHOW CAUSE REGARDING FAILURE TO FILE PROOF OF SERVICE OF THE SUMMONS AND COMPLAINT IS SET FOR NOVEMBER 22, 2024 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

ANALYSIS:

On May 18, 2023, Plaintiff Don Kim (“Plaintiff”) filed the instant action against Defendant Jake Perez (“Defendant”). Plaintiff filed proof of personal service of the Summons and Complaint on September 20, 2023. Following Defendant’s failure to file a responsive pleading, the Court entered their default on November 22, 2023 and default judgment on December 7, 2023.

Defendant filed the instant Motion to Vacate Default and Default Judgment on June 12, 2024. Plaintiff filed an opposition on August 2, 2024 and Plaintiff replied on August 8, 2024.

Discussion

Defendant moves to vacate the entry of default pursuant to Code of Civil Procedure section 473 subdivision (d), section 473.5, or on equitable grounds. Plaintiff requests judicial notice of (1) Judicial Branch of California, Self-Help Guide, “Deciding between small claims and limited civil” (https://selfhelp.courts.ca.gov/small-claims-or-limited-civil.); (2) June 15, 2023, Minute Order issued in Don Kim v. Jake Perez, Los Angeles Superior Court Case No. 23PDSC00040; (3) On September 20, 2023, Plaintiff filed a Proof of Service of Summons as to Jake Perez; (4) On May 15, 2024, Plaintiff’s Counsel obtained a property title transfer history for 2116 Summit Avenue, Altadena, California 91001. The request is denied as to the first document for lack of relevance to the instant Motion. The request is granted as to the fact that Plaintiff’s Small Claims case against Defendant was dismissed on June 15, 2023 and that Plaintiff filed a proof of personal service in this action. The Court does not take judicial notice of the truth of the contents of the court documents. (Evid. Code, § 452, subd. (d); Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1560–1569.)

First, the Motion is 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).)

Defendant contends he was not aware of this action until February 2024 when informed by a law enforcement officer in Tennessee. (Motion, Perez Decl., ¶¶11-13.) Defendant disputes that they were personally served with the Summons and Complaint as stated in the proof of personal service filed on September 20, 2023. (Ibid.) “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.) The party seeking to defeat service of process must present sufficient evidence to show that the service did not take place as stated. (See Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1428; cf. People v. Chavez (1991) 231 Cal.App.3d 1471, 1483 [“If some fact be presumed, the opponent of that fact bears the burden of producing or going forward with evidence sufficient to overcome or rebut the presumed fact.”].) Merely denying service took place without more is insufficient to overcome the presumption. (See Yadegar, supra, 194 Cal.App.4th at 1428.)

The proof of personal service filed on September 20, 2023 is not attested to by a registered process server. (Proof of Personal Service, filed 09/20/23, ¶7.) The burden to demonstrate service, therefore, falls to Plaintiff. Plaintiff’s opposition is supported by the declaration of counsel, who reiterates that service was accomplished as stated in the proof of service, namely that Plaintiff was personally served on September 12, 2023 at 2237 Burnside Dr., Murfreesboro, Tennessee. (Opp., Ma Decl., ¶6.) This alone does not prove the facts requisite to an effective service as it merely relies on the proof of service already challenged by Defendant. Plaintiff’s counsel also attaches a copy of a letter sent from Defendant and received in October 2023 regarding the “continued demands for collections of your alleged outstanding amount owned [sic] to you for work performed. (Id. at Exh. A.) Although the opposition argues that this letter demonstrates Defendant received actual notice of the instant action, the Court does not agree. The declaration does not attach the envelope in which the undated letter arrived to demonstrate that it was sent by Defendant after service of the Summons and Complaint in this action. The letter also only references “continued demands for collections” which may not necessarily refer to the instant action; Plaintiff previously filed a Small Claims action against Defendant in January 2023, which was dismissed on June 15, 2023. (Motion, RJN, Exh. 2.) The letter may be referring to the events surrounding the Small Claims action.

While the reply in support of the Motion attaches a copy of Defendant’s proposed answer to the Complaint, Defendant’ declaration does not include facts showing that any purported lack of action notice was not caused by their own avoidance of service or inexcusable neglect. Defendant’s reply makes a strange argument that Plaintiff bears the burden of showing that Defendant’s lack of notice was the result of his willful avoidance or inexcusable neglect. This is a misstatement of law because it is Defendant who bears the burden of meeting the statutory requirements for relief under Code of Civil Procedure section 473.5. No authority is cited, nor exists, to place that burden on Plaintiff. Therefore, the requirements for relief from the entry of default and default judgment under Code of Civil Procedure section 473.5 are not met.

Next, 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).) Defendant cites Strathvale Holdings v. E.B. H. (2005) 126 Cal.App.4th 1241, for the proposition that a judgment is void for lack of personal jurisdiction where the defendant lacks minimum contacts with the forum state. (Strathvale Holdings v. E.B. H. (2005) 126 Cal.App.4th 1241, 1249.) Defendant contends this reasoning applies because, by the time this action was filed, he was no longer a California resident. The Motion, however, points to no authority that minimum contacts with the forum are determined at the time an action is filed. Such a rule would allow a defendant to avoid civil liability by moving their residence. Indeed, Defendant points out that the correct rule is, “When determining if personal jurisdiction exists, namely specific jurisdiction, courts consider factors such as the interest of the state in providing a forum for its resident and the extent to which the cause of action arose out of the defendant’s activities in the forum state. Belmont Indus., Inc. v. Super. Ct. (1973) 31 Cal.App.3d 281, 286.” (Motion, p. 5:11-14.) Yet the Motion does not analyze the extent to which the cause of action arises out of Defendant’s activities. Here, the Complaint alleges that Defendant hired a contractor to paint a house located in Altadena, California. (Compl., ¶¶8-9.)

That being said, the analysis above with respect to proof of personal service of the Summons and Complaint demonstrates that Defendant has successfully challenged the court’s personal jurisdiction on the ground of improper service of process. As Plaintiff does not show that personal service of the Summons and Complaint was made upon Defendant as stated in the proof of service, the Court finds the default and default judgment are void for lack of personal jurisdiction.

Conclusion

Court clerk to give notice.