Judge: Michael C. Kelley, Case: 19AVCV00874, Date: 2022-09-29 Tentative Ruling

Case Number: 19AVCV00874    Hearing Date: September 29, 2022    Dept: A15

Background

This subrogation action arose from an alleged car accident that occurred on October 30, 2017. (Compl. ¶ 7.) Plaintiff Interinsurance Exchange of the Automobile Club accused Defendants Katherine Michelle Mitchell and Deborah Ann Boissier of negligently causing a car accident that injured Paul S. Fink. (Id., ¶¶ 7-8.) Mr. Fink was Plaintiff’s insured, and, since Defendants were uninsured, Plaintiff paid Mr. Fink a total of $41,983.28 for his injuries and property damage. (Id., ¶ 10.)

Plaintiff then filed the operative Complaint for subrogation on November 22, 2019. Default was entered against the defendants on November 30, 2020.

Then, on January 3, 2022, the Court granted Plaintiff’s request for default judgment. According to its proof of service, filed on January 12, 2022, Plaintiff served Defendants with the judgment on January 12, 2022.

On July 22, 2022, Defendants filed the instant Motion to Set Aside Default Judgment. Plaintiff filed a timely Opposition and Defendants filed a timely Reply.

Analysis

Motion to Set Aside Default Judgment—Defendants move for relief from default judgment pursuant to Code of Civil Procedure section 473.5. Section 473.5 states:

When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.

(Code Civ. Proc., § 473.5, subd. (a).) In order to grant the motion, the court must find that the motion was timely and that the moving party’s lack of notice of the complaint “was not caused by his or her avoidance of service or inexcusable neglect[.]” (Code Civ. Proc., § 473.5, subd. (c).)

Here, default judgment was entered on January 3, 2022, and two years from that date would be January 3, 2024. According to Plaintiff’s proof of service, it served notice of the entry of default judgment on January 12, 2022; and 180 days from this date would be July 11, 2022. July 11, 2022 is the earlier of the two dates.

Therefore, under Section 473.5, Defendants needed to serve and file this motion by July 11, 2022. Defendants filed this motion on July 22, 2022. It is therefore untimely. The court’s authority to grant relief under Section 473.5 is jurisdictional; outside the deadlines provided by subdivision (a), the Court can provide no relief. (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180 [“Section 473.5 does not offer Kenney an avenue for relief because Kenney's motion was filed over two years after the entry of judgment.”].)

But Defendants argue this motion should be granted, irrespective of its untimeliness, because Defendants never actually received notice of the lawsuit or the entry of default judgment.

The Court can no longer grant relief under Section 473.5, due to the expiration of the statutory deadline. Instead, Defendants’ only avenue of relief is “to show that the judgment was void, by showing the proof of service was void on its face.” (Trackman v. Kenney, supra, 187 Cal.App.4th at 181.) This is because a void judgment “may be set aside by the court at any time[.]” (Baird v. Smith (1932) 216 Cal. 408, 410.)

Whether Default Judgment was Void

“The court may . . . on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc., § 473, subd. (d).) “[A] default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) “A void judgment's invalidity appears on the face of the record, including the proof of service.” (Trackman v. Kenney, supra, 187 Cal.App.4th at 181.)

Here, Plaintiff’s Proof of Service of Summons indicates that Defendant Mitchell was personally served on September 14, 2020 at 42614 Ranch Club Road, Lake Hughes, CA 93532, by a person who is exempt from registering as a process server under Business and Professions Code section 22350. Its Proof of Service as to Defendant Boissier shows that she was personally served by a registered process server on October 30, 2020 at 1182 Gantlin Street, Simi Valley, CA 93065.

Defendants attest these were not their mailing addresses on the dates of service. (Defs.’ Mot. Set Aside Default Judg. at Ex. C [PDF pp. 44-47].) Defendant Mitchell attests that, while she resided at 42614 Ranch Club Road, she did not receive mail at that address. Defendant Boissier attests that she “never received mail at” 1182 Gantlin Street.

Under Evidence Code section 647, a proof of service based on the declaration of “a process server registered pursuant to [Business and Professions Code section 22350] establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.” (Evid. Code, § 647.) Plaintiff’s proofs of service were based on such declarations. The proofs of service therefore establish a presumption of valid service.

Defendants’ evidence does not refute this presumption. Whether Defendant Mitchell received mail at 42614 Ranch Club Road is irrelevant, since the proof of service establishes that she was personally served with the summons and complaint. If anything, Defendant Mitchell’s declaration supports the facts in the proof of service, since she attests that she indeed resided at the Ranch Club Road address.

As for Defendant Boissier, whether she received mail at 1182 Gantlin Street is also irrelevant to whether she was personally served there, which is what the proof of service establishes. Tellingly, Defendant Boissier never attests that she never resided at 1182 Gantlin Street.

In summary, Defendants have not refuted the presumption of valid service established by Plaintiff’s proofs of service. The Court therefore finds that Defendants were properly served with the summons and complaint, such that there are no grounds to find the default judgment was void.

Conclusion