Judge: Maurice A. Leiter, Case: 23STCV17413, Date: 2024-02-06 Tentative Ruling

Case Number: 23STCV17413    Hearing Date: February 6, 2024    Dept: 54

Hearing Date: February 6, 2024

Department 54, Judge Maurice A. Leiter

(2) Motions to Set Aside Default

Moving Party: Defendants Lin Yang and Kundi Li

Responding Party: Plaintiff Yi Ping Lu

T/R:     DEFENDANTS’ MOTIONS TO SET ASIDE DEFAULT ARE GRANTED. DEFENDANTS MUST RESPOND TO THE COMPLAINT WITHIN 30 DAYS.

DEFENDANTS TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing. 

The Court considers the moving papers, oppositions, and replies.

CCP § 473(d) provides that “[t]he court may . . . on motion of either party after notice to the other party, set aside any void judgment or order.” A default judgment is void against a defendant who was not served with a summons in the manner prescribed by statute. (See Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 858.) Relief pursuant to section 473(d) may be made at any time. (See Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.)

Defendants Lin Yang and Kundi Li move to set aside entry of default on the ground that they were not properly served with the summons and complaint. The proofs of service show that both Defendants were served on August 7, 2023 at an address on Woods Drive in Los Angeles. Defendant Li purportedly was served via substitute service on a co-tenant named Lin Yang, described as a 5’6” 130lb female. Defendant Yang purportedly was personally served at the same time.

Defendants challenge these proofs of service on the grounds that a female named Lin Yang does not live at the premises with Defendants and Defendant Lin Yang is male who is 5’11” and 150lbs. Defendant Yang also declares that he was at a Starbucks at the time of service.

In opposition, Plaintiff asserts that the proofs of service and declaration of the registered process server create a presumption of proper service. Plaintiff does not address the discrepancy in the physical description of Defendant Yang.

Defendants have rebutted the presumption created by the proofs of service. The process server could not have personally served Defendant Yang, as Yang is not a 5’6” 130lb female. This, in combination with Defendant Li’s declaration that no female as described in the proof of service lives at the property, and Yang’s declaration that he was not present at the home, defeats any presumption of valid service.

Defendants’ motions are GRANTED.