Judge: Mark H. Epstein, Case: 22SMCV01622, Date: 2023-04-20 Tentative Ruling

Case Number: 22SMCV01622    Hearing Date: April 20, 2023    Dept: R

The motion is GRANTED. 

It does appear that plaintiff’s service is not code compliant.  And compliance is mandatory because a default judgment entered against a defendant not properly served is void.  (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426.)  The motion is timely.  It was made within 2 years of the date judgment was entered.  (Code Civ. Proc. § 473.5 subd. a.)  Even if the 180 day period in the statute applied, the court believes that the motion is reasonable.  Defendant was able to quash the writ of possession and there really was nothing left to do until the second UD action was filed.  Further, defendant provided evidence that showed that service was made upon Dr. Obeng, but then the description describes the person to whom the substituted service was made as “JANE DOE,” a male that does not describe the defendant’s actual agent.  And Obeng attests that no such person was in his employ at the pertinent time.  Given that, there is no evidence that shows that the person served was proper.  The court also believes that there has been an adequate showing of mistake, inadvertence, surprise, or excusable neglect.  The evidence may be slight, but that is enough.  (Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13.)  Here, the evidence is that defendant did make at least some payments (and they were significant), albeit late ones. 

The court is not thrilled because the history of this case seems to be that defendant will make a promise, and then half-heartedly deliver or deliver late or not deliver.  But that sympathy does not mean that the motion can be denied.

Plaintiff claims prejudice because defendant still has possession and the unpaid debt has ballooned.  Perhaps so, but that is just a litigation delay and not a sufficient basis to deny the motion.  However, if there are additional damages, defendant may well be liable for them.