Judge Melvin D. Sandvig, Case PC055354 2022-12-08 Tentative Ruling

Judge: Melvin D. Sandvig, Case: PC055354, Date: 2022-12-08 Tentative Ruling

Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assisant in North Valley Department F47, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2247. Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and specially pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org. All hearings on law and motion and other calendar matters are generally NOT transcribed by a court reporter unless one is provided by the party(ies).

Case Number: PC055354 Hearing Date: December 8, 2022 Dept: F47

Dept. F47

Date: 12/8/22

Case #PC055354

MOTION TO VACATE DEFAULT & DEFAULT JUDGMENT

QUASH SERVICE

Motion filed on 8/10/22.

MOVING PARTY: Defendant Sargis Khacherian

RESPONDING PARTY: Assignee of Record Becharoff Capital Corporation

NOTICE: ok

RELIEF REQUESTED: An order to vacate and set aside the default entered against Defendant on 6/25/14 and the default judgment entered against Defendant on 7/18/14 and to quash the summons on the complaint.

RULING: The motion is granted.

This action arises out of a debt allegedly owed by Sarkis Khacherian aka Sargis Khacherian III (Defendant/Judgment Debtor). On 11/25/13, Plaintiff Asset Acquisition Group, LLC, as assignee of BMW Financial Services NA, LLC (Plaintiff) filed this action against Defendant for Breach of Vehicle Lease Contract, Account Stated, Quantum Meruit and Open Book Account. On 1/19/14, Plaintiff filed a proof of service indicating that on 12/28/13, the Summons and Complaint were personally served on Defendant. (See Proof of Service filed 1/9/14).

On 6/25/14, Default was entered against Defendant and on 7/18/14, default judgment was entered in this action in favor of Plaintiff and against Defendant in the amount $26,929.23. (See 6/25/14 Request for Entry of Default; 7/18/14 Default Judgment). On 1/20/22, the Judgment was Assigned to Becharoff Capital Corporation (Assignee). (See Assignment of Judgment & Acknowledgment of Assignment of Judgment filed 1/20/22).

On 2/1/22, Assignee filed a Motion Permitting Issuance of Earnings Withholding Order on Earnings of Spouse of Judgment Debtor which was granted by this Court on 6/22/22. (See 6/22/22 Minute Order). On 8/10/22, Defendant filed the instant motion which seeks an order, pursuant to CCP 473(d) and CCP 418.10(a)(1), vacating and setting aside the default entered against Defendant on 6/25/14 and the default judgment entered against Defendant on 7/18/14 and to quash the summons on the complaint. The motion was served by mail on 8/9/22. Assignee has opposed the motion.

Here, Defendant contends that the judgment entered against him is void because he was never served with the summons and complaint in this action. (See Amended Khacherian Decl.; Goldberg Decl.)

CCP 473(d) provides:

“The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”

Service of summons which comports with the statutory requirements is jurisdictional. See Sternbeck (1957) 148 CA2d 829, 832. Lack of jurisdiction means an entire absence of power to hear or determine the case which can be the result of an absence of authority over the subject matter or the parties. See Strathvale Holdings (2005) 126 CA4th 1241, 1249 (internal citations omitted). When a court lacks jurisdiction over the parties or the subject matter, a resulting judgment is void and subject to direct or collateral attack at any time. Id. A motion to vacate a void judgment, such as the instant motion, is a direct attack. Id. A ruling on motion to vacate and set aside a default judgment is based on the trial court's sound discretion which will not be disturbed on appeal absent a clear showing of abuse. Id.

If a defendant challenges a court’s personal jurisdiction, the plaintiff bears the initial burden of showing facts justifying the exercise of jurisdiction. Id. When there is conflicting evidence, the trial court’s determinations are not disturbed on appeal if supported by substantial evidence. Id. Since the law favors judgments on the merits, any doubts on a motion for relief from default must be resolved in favor of granting relief. Lasalle (2019) 36 CA5th 127, 134.

Since Defendant challenges this court’s personal jurisdiction over him, Assignee has the burden of establishing facts which justify such jurisdiction. Strathvale Holdings, supra. Assignee has failed to meet its burden.

The opposition cites authority for the proposition that “[t]he filing of a proof of service that complies with the statutory requirements creates a rebuttable presumption that the service was proper. [Cf. Dill v. Berquist Const. Co. (1994) 24 Cal.[App].4th 1426, 1441- 1442; Floveyor International, Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795].” (See Opposition, p.9:7-9). Assignee’s own argument in the opposition rebuts the presumption in this case. Assignee argues that “Defendant/Judgment Debtor was sub-served at his usual mailing address” and that “proper service was affected and created an opportunity for the Judgment Debtor to appear and defend.” (See Opposition, p.7:18-p.9:11). However, as noted above, the proof of service for the Summons and Complaint in this action indicates that Defendant was personally served, not sub-served, in this action. (See Proof of Service filed 1/9/14). Assignee fails to address Defendant’s argument that the description of the person purportedly personally served in the 1/9/14 proof of service does not match Defendant. (See Opposition, generally). Nor does Assignee explain the discrepancy between its argument that Defendant was served by substitute service and the proof of service filed almost 9 years ago claiming personal service on Defendant.

The evidence in this action indicates that Defendant was not properly served in this action. Therefore, this Court never obtained jurisdiction over Defendant. As a result, the default judgment entered against Defendant is void. See Strathvale Holdings, supra; Sullivan (1967) 256 CA2d 301, 305; Sternbeck, supra at 832-833.

Based on the foregoing, the default and default judgment entered against Defendant are vacated and set aside and the service on Defendant is quashed. CCP 473(d); CCP 418.10(a)(1).

Based on the grounds for the denial of the motion, the Court finds it unnecessary to rule on Assignee’s Request for Judicial Notice and Defendant’s evidentiary objections.

Based on the fact that the default and default judgment are set aside and vacated, the Court also vacates its 6/22/22 Order Permitting Issuance of Earnings Holding Order on Earnings of Spouse of Judgment Debtor as such order was based on the presumption of a valid judgment against Defendant. The vacating of such order renders the Hearing on Claim of Exemption of Gaiane Chtchian moot. (See 10/28/22 Stipulation & Order to Continue Hearing). As such, the Hearing on Claim of Exemption also set for hearing on 12/8/22 is placed off calendar.