Judge: Mark E. Windham, Case: LAM09K23557, Date: 2023-05-01 Tentative Ruling

Case Number: LAM09K23557    Hearing Date: May 1, 2023    Dept: 26

A-L Financial Corp. v. Sullivan, et al.

NOTION TO VACATE JUDGMENT

(CCP §§ 473.5, 473(d))

TENTATIVE RULING:

Defendant Andre De Shawn Sullivan’s Motion to Vacate Default Judgment is GRANTED. THE ACTION IS DISMISSED WITH PREJUDICE.

ANALYSIS:

On December 11, 2009, Plaintiff A-L Financial Corporation (“Plaintiff”) filed the instant action against Defendant Andre De Shawn Sullivan (“Defendant”). Default judgment was entered against Defendant on August 4, 2010. On September 25, 2015, assignment of judgment was filed naming Pacific Credit Exchange (“Judgment Assignee”) as the judgment assignee. The judgment was renewed on July 23, 2020 and the Notice of Renewal of Judgment was served on Defendant on December 10, 2020. (Proof of Service, filed 01/27/21.) Defendant, in pro per, filed a motion to vacate default judgment on April 26, 2021. The motion was not opposed and following the hearing, the Court denied the Motion without prejudice on May 18, 2021. (Minute Order, 05/18/21.)  

Defendant now brings a second motion to vacate default judgment through counsel, filed on March 21, 2023. No opposition has been filed to date.

Discussion

Defendant moves to vacate the judgment entered against him pursuant to Code of Civil Procedure section 473, subdivision (d), under which “[t]he court may . . . set aside any void judgment or order.” (Code Civ. Proc., § 473, subd. (d).) In County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1229, the Court of Appeal explained:

[W]here it is shown that there has been a complete failure of service of process upon a defendant, he generally has no duty to take affirmative action to preserve his right to challenge the judgment or order even if he later obtains actual knowledge of it because “[w]hat is initially void is ever void and life may not be breathed into it by lapse of time.” (Morgan, supra, 105 Cal.App.2d at p. 731, 234 P.2d 319.) Consequently under such circumstances, “neither laches nor the ordinary statutes of limitation may be invoked as a defense” against an action or proceeding to vacate such a judgment or order. (Id. at p. 732, 234 P.2d 319.) And, where evidence is admitted without objection that shows the existence of the invalidity of a judgment or order valid on its face, “it is the duty of the court to declare the judgment or order void.” (Thompson v. Cook (1942) 20 Cal.2d 564, 569, 127 P.2d 909 (Cook ).)

(County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215.) There being no deadline to bring a motion under Code of Civil Procedure section 473, subdivision (d), and the prior motion to vacate having been denied without prejudice, Defendant’s request for relief under this statute is timely.

Defendant must show that service of the Summons and Complaint did not substantially comply with the statutory requirements. The proof of substitute service filed on February 22, 2010 is attested to by a registered process server, and therefore, is entitled to a presumption of truth in the facts stated therein under Cal. Evidence Code section 647. (Proof of Service, filed 02/22/10, ¶7.) The proof of service states that following multiple attempts at personal service from December 2009 to January 2010, the Summons and Complaint were left at 841 W. 62nd Street, Los Angeles, California on February 22, 2010, with David “Doe”, Co-Occupant, a black male, 25+ years old, 6 foot, 3 inches tall and weighing 260 pounds. (Proof of Service, filed 02/12/10, ¶¶4-5 and Declaration of Diligence.)

Defendant now submits a declaration attesting that 841 W. 62nd Street was not their residence and therefore did not qualify as their “dwelling house, usual place of abode, usual place of business, or usual mailing address” as required for substitute service under Code of Civil Procedure section 415.20. (Motion, Sullivan Decl., ¶¶3-5.) Rather, 841 W. 62nd Street was Defendant’s grandmother’s home until her passing in November 2009. (Ibid.) Defendant, on the other hand, lived at 312 S. Chapel Avenue, Alhambra, California from October 2008 until September 2010. (Ibid.) This is supported by copies of court records from an unlawful detainer action and family law case involving Defendant. (Id. at Exhs. 2-4.) This evidence overcomes the presumption of truth in the facts stated in the proof of service regarding whether 841 W. 62nd Street was a proper address for substitute service. It also shifts the burden of proof to Judgment Assignee to show how service as stated in the proof of service complied with the statutory requirements for substitute service, which are set forth at Code of Civil Procedure section 415.20. However, there is no opposition to the motion.

Therefore, the Court finds service of the Summons and Complaint did not comply with the statory requirements, rendering all that followed, including the default judgment, void under Code of Civil Procedure section 473, subdivision (d).

Conclusion

Defendant Andre De Shawn Sullivan’s Motion to Vacate Default Judgment is GRANTED. THE ACTION IS DISMISSED WITH PREJUDICE.

Court clerk to give notice.