Judge: Mark E. Windham, Case: LAM05K08833, Date: 2023-04-19 Tentative Ruling
Case Number: LAM05K08833 Hearing Date: April 19, 2023 Dept: 26
Unifund CCR Partners
v. Thipsorn, et al.
MOTION TO QUASH SERVICE, VACATE DEFAULT JUDGMENT, QUASH WRITS OF EXECUTION, VACATE
RENEWAL OF JUDGMENT
TENTATIVE RULING:
Judgment Debtor
Sarnaya Thipsorn’s Motion to (1) Quash Service of Summons; (2) Vacate and Set
Aside Default and Default Judgment; (3) Recall and Quash Writs Of Execution and
Abstracts of Judgment; and (4) Dismiss Action Pursuant to CCP 583 et seq. is
GRANTED. THE ACTION IS DISMISSED WITH
PREJUDICE PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 583.250.
ANALYSIS:
Plaintiff Unifund
CCR Partners (“Judgment Creditor”)
filed the instant action against Defendant Sarnaya Thipsorn (“Judgment Debtor”)
on June 23, 2005. Following Defendant’s failure to file a responsive pleading,
default judgment was entered on December 7, 2005. The judgment was renewed on September
23, 2014 and October 26, 2022. Notice of the latest renewal of judgment was
served on Judgment Debtor on November 8, 2022. (Proof of Service by Mail, 11/23/22.)
Judgment Debtor filed the instant Motion to (1)
Quash Service of Summons; (2) Vacate and Set Aside Default and Default
Judgment; (3) Recall and Quash Writs Of Execution and Abstracts of Judgment; and
(4) Dismiss Action Pursuant to CCP 583 et seq. on March 6, 2023. No opposition
has been filed to date.
Discussion
Judgment Debtor argues that service of the Summons and
Complaint was never accomplished as stated in the proof of service. “[T]he
undisputed failure to have served the summons and complaint also provides a
basis for a motion to vacate a renewed judgment.” (Fidelity Creditor Service,
Inc. v. Browne (2001) 89 Cal.App.4th 195, 202.) A default judgment should
be vacated 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).) “California is a jurisdiction where the original service of
process, which confers jurisdiction, must conform to statutory requirements or
all that follows is void.” (Honda Motor Co. v. Superior Court (1992) 10
Cal.App.4th 1043, 1048.) Nor is there is any time limit on when a void judgment
can be challenged. (Deutsche Bank National Trust Co. v. Pyle (2017) 13
Cal.App.5th 513, 526 [citing Falahati v. Kondo (2005) 127 Cal.App.4th
823, 830; Code Civ. Proc., § 473, subd. (d)].)
Where service of the Summons 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.)
The
proof of personal service of the Summons and Complaint was attested to by a
registered process server. (Thirsorn Decl., Exh. A, ¶7.) Therefore, the proof
of service invokes a rebuttable presumption affecting the burden of producing
evidence of the facts stated therein. The burden falls to Judgment Debtor to
demonstrate that service of the Summons and Complaint was not accomplished as
stated in the proof of service and did not conform to the statutory
requirements. The proof of service states that Judgment Debtor was personally
served with the papers on June 29, 2005 at 2:23 pm, at 831 S. Serrano Avenue,
Apt. 1, Los Angeles, California. (Id. at ¶¶4-5.)
Judgment
Debtor’s declaration demonstrates that they were not in the country on the date
of purported service, rather, they were traveling in Asia. (Id. at ¶¶5-9
and Exhs. B-D.) Specifically, Judgment Debtor left Thailand on June 29, 2005
and arrived in Tokyo, Japan on June 30, 2005. (Ibid.) Judgment Debtor
did not return to Los Angeles, California until July 3, 2005. (Id. at
Exh. E.) This evidence carries Judgment Debtor’s burden to demonstrate that the
proof of service is false, rendering all that followed in this action to be
void for lack of personal jurisdiction. Judgment Creditor has filed no
opposition to the motion to demonstrate that service was proper.
Conclusion
Therefore, Judgment Debtor
Sarnaya Thipsorn’s Motion to (1) Quash Service of Summons; (2) Vacate and Set
Aside Default and Default Judgment; (3) Recall and Quash Writs Of Execution and
Abstracts of Judgment; and (4) Dismiss Action Pursuant to CCP 583 et seq. is
GRANTED. THE ACTION IS DISMISSED WITH
PREJUDICE PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 583.250.
Court clerk to give notice.