Judge: Mark H. Epstein, Case: 22SMCV92422, Date: 2023-09-27 Tentative Ruling

Case Number: 22SMCV92422    Hearing Date: September 27, 2023    Dept: I

The motion to set aside the default is GRANTED.  Plaintiff sues defendant because after selling defendant a car, defendant allegedly never transferred ownership and the car was in an accident (leading plaintiff to be sued) and also had parking tickets.  Plaintiff served defendant via substituted service.  According to the proof of service, the papers were left with “Manvel Doe.”  This person did not give his last name, but was “in apparent charge” of the premises according to the POS.  According to defendant, though, Manvel is not even an employee, let alone in charge of the location.  Rather, defendant states that Manvel is a contractor who is called upon from time to time when needed.  He was not authorized to accept service and was not in “apparent charge” of anything.  While defendant admits to getting “numerous legal documents,” he did not know he was being sued or in default until he got the order of April 25, 2023.  When he got that, he hired a lawyer and on August 28, 2023, moved to vacate.

This is somewhat troubling.  The court must agree that service of the complaint and summons does not appear proper.  If Manvel was not even an employee, he would not really be the right person to serve.  And there is no evidence as to what, if anything, the process server did to find out who was in charge.  It is unclear, for example, whether the process server asked to speak to the manager.  Handing a summons and complaint to someone who is at the defendant’s work location is not enough.  And while there is a presumption of good service when there is a POS from a registered process server, that presumption affects only the burden of production.  Once contrary evidence is introduced, the presumption goes away completely.  The declaration is still evidence, of course, but it carries no further presumption.

Here, default was entered on April 25, 2023.  The motion was filed just over four months later.  That is timely.

The court is a bit more concerned about the fact that defendant got “numerous legal documents” but did not think to look to see whether he was getting them for a reason.  But the failure of service is enough, especially given the strong public policy favoring resolution on the merits.

Accordingly, the motion is GRANTED.  Defendant is to file a standalone answer no later than September 29, 2023 at 4:00 pm.

Defendant also seems to argue the merits.  That is not before the court at the moment and the court makes no comments thereon.

The court will set a Case Management Conference for about 45 days from today.