Judge: Michael C. Kelley, Case: 22AVUD00475, Date: 2022-09-27 Tentative Ruling

Case Number: 22AVUD00475    Hearing Date: September 27, 2022    Dept: A15

Background

This unlawful detainer action was filed in propria persona by Plaintiff Wei Guo against Defendants James Wayne Morgan (“James”) and William Timothy Morgan (“William,” and collectively, “Defendants”) regarding the residential property located at 37431 Scranton Court, Palmdale, CA 93552 (the “Premises”). According to Plaintiff’s Exhibit 1 to the Complaint, Plaintiff and Defendants entered into a 2-year rental agreement that began on September 5, 2021. A monthly rent of $3,300.00 was due on the fifth day of each month of the rental term. According to Plaintiff’s Exhibit 2 to the Complaint, Defendants owe unpaid rent totaling $26,400.00, which began accruing on October 1, 2021.

Plaintiff served a 3-day notice to pay rent or quit on May 11, 2022, but Defendants did not comply. Plaintiff therefore filed the operative Complaint on June 6, 2022. On June 20, 2022, the Court granted Defendants’ Motion to Quash Service of Summons after finding that service was not proper.

Plaintiff filed proofs of service on July 6, 2022 and default was entered against Defendants that same day. The proofs of service indicate Defendants were each served on June 11, 2022 by a registered California process server. On July 26, 2022, the Clerk entered a default judgment against Defendants, and issued the Writ of Possession.

Defendants filed the instant Motion to Set Aside Default and Default Judgment on August 26, 2022. They allege that the June 11, 2022 service was the defective service that the Court had quashed on June 20, 2022. They allege that the July 6, 2022 proofs of service are untruthful, and that they were never actually served.

On August 29, 2022, after an ex parte hearing, the Court stayed the execution of the Writ of Possession until further order of the Court, and specially set the hearing on the Motion to Set Aside Default and Default Judgment for September 7, 2022. However, at the September 7, 2022 hearing, Plaintiff required another continuance. Therefore, the hearing was continued to September 27, 2022.

Since the September 7, 2022 hearing, Plaintiff has filed a Substitution of Attorney and is now represented; and James filed a new declaration in support of Defendants’ motion.

Analysis

Motion to Set Aside Void Judgment—Under Code of Civil Procedure section 473, “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 judgment is void when there is a lack of jurisdiction over the subject matter or the person.” (Ironridge Global IV, Ltd. v. ScripsAmerica, Inc. (2015) 238 Cal.App.4th 259, 267.)

“To establish personal jurisdiction, it is essential to comply with the statutory procedures for service of process. [Citation.] Accordingly, ‘“a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.”’” (OC Interior Services, LLC v. Nationstar Mortgage, LLC (2017) 7 Cal.App.5th 1318, 1330–1331, quoting Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.)

Here, Defendants move to set aside the default and default judgment on the grounds that they “were never lawfully served” with the summons and complaint. (Defs.’ Mot. Set Aside at 2.) In other words, they move to set aside the default judgment because said judgment is void; and said judgment is void because they were not properly served with the summons and complaint.

The Court had found that service was improper when it granted Defendants’ Motion to Quash on June 20, 2022. It follows that the default judgment was void and should not have been entered based on that quashed service.

However, Plaintiff has since filed proofs of service which, along with Defendants’ representations, demonstrate by a preponderance of the evidence that the June 11, 2022 service was, in fact, valid. If service was valid, there are no grounds to set aside the default and default judgment.

Defendants argue, however, that despite the proofs of service, service was not proper. The Court therefore returns to the issue raised in the aforementioned Motion to Quash.

Reconsideration of Motion to Quash—Code of Civil Procedure section 1008 “limit[s] the parties' ability to file repetitive motions but [does] not limit the court's ability, on its own motion, to reconsider its prior interim orders so it may correct its own errors.” (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107.)

“When a defendant moves to quash service for lack of personal jurisdiction, the plaintiff bears the burden of proving facts supporting the exercise of jurisdiction by a preponderance of the evidence.” (Bader v. Avon Products, Inc. (2020) 55 Cal.App.5th 186, 192–193.)

At the hearing on the Motion to Quash, Plaintiff had not appeared nor filed an opposition. The only evidence before the Court at that time was James’s declaration, which he lodged with the Motion to Quash. He stated in the declaration, “Plaintiff has only left a copy with one person, but without completing substitute service.” Defendants’ argument seemed to be that service was improper because only one person received a copy, rather than each defendant receiving his own. They do not specify which of them received a copy, nor do they explain in what way substitute service was not completed.

Nevertheless, the Court had found there was sufficient evidence to quash the service of summons, and therefore granted the Motion to Quash.

But after the Court granted the Motion to Quash, Plaintiff filed proofs of service indicating personal service on both defendants, and substitute service on the unknown occupants. These proofs of service, filed on July 6, 2022, were executed by a registered California process server under penalty of perjury, and create a prima facie showing that the service was valid. As these proofs of service were filed after the hearing, the Court had not considered them when it ruled on the Motion to Quash; they therefore constitute new evidence, and the Court finds this new evidence necessitates reconsideration of the Motion to Quash.

Validity of Service on Defendants

Under Evidence Code section 647, a proof of service based on the declaration of a registered process server “establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.” (Evid. Code, § 647.) Furthermore, the statutes governing service of process are “to be liberally construed to effectuate service and uphold jurisdiction if actual notice has been received by the defendant[.]” (Bein v. Brechtel-Jochim Group, Inc. (1992) 6 Cal.App.4th 1387, 1392.)

Here, the proofs of service have established a presumption that service was proper: a registered California process server attested, under penalty of perjury, that he personally served both defendants on June 11, 2022. This process server has no incentive to lie, and, being a professional process server, is unlikely to have made the mistakes which Defendants accuse him of.

Indeed, Defendants argued in their Motion to Quash that this service was improper, because the process server left only one copy of the summons and complaint, instead of leaving a copy for each defendant. But, even if this were true, service was otherwise substantially compliant and Defendants clearly received actual notice—they have made several filings in this action. The case law has held that this actual notice is sufficient to effectuate service. Therefore, the June 11, 2022 service is valid.

Defendants’ Motion to Set Aside Default Judgment appears to be based on their mistaken belief that the proofs of service convey that they were personally served on July 6, 2022. Therefore, all their evidence goes towards disproving the notion that they were personally served on July 6, 2022, rather than the issue of whether the June 11, 2022 service was valid.

Nevertheless, the Court addresses Defendants’ evidence in support of their argument that the process server’s declaration was perjured, and that they were not actually served as the proofs of service reflect. Defendants have represented to the Court that the proofs of service, which state that they were personally served at the Premises, are untruthful because Defendants were actually out-of-state on that date. In support of this contention, James attests he has been in Illinois since February 1, 2022; and that William has been in Illinois since July 3, 2022. James lodges exhibits which he argues provide proof of their locations.

James’s first item of evidence is a screenshot of his flight history with Southwest Airlines. (Defs. Decl. James Wayne Morgan Supp. Mot. Set Aside Default Judg. at PDF p. 4.) The screenshot indeed indicates that he had a flight booked for February 1, 2022, to fly from Los Angeles to Chicago. Unlike the previous two trips that are also shown on his flight history, there is no return trip to Los Angeles associated with this February 1, 2022 flight to Chicago. This does suggest that there was no return trip, and that the passenger may have remained in Chicago; otherwise, a return would have been listed in his flight history like the earlier one.

However, this flight history is not direct proof that James was in Illinois on June 11, 2022; it is merely proof that he had a flight to Illinois reserved for February 1, 2022. James also includes screenshots of his Google Maps location history, allegedly showing that on July 3, 2022, he traveled from Los Angeles to Chicago, and remained there until at least July 8, 2022. (Defs. Decl. James Wayne Morgan Supp. Mot. Set Aside Default Judg. ¶¶ 3-5 [“I have attached a true and correct copy of my Google Maps trip showing my location in IL on July 5, 2022.”].) This contradicts his earlier attestation that he flew to Chicago on February 1, 2022 and has not returned since; and this contradiction makes his declaration more confusing and less credible.

Furthermore, there is no way to determine that this is James’s location history, as there is no identity associated with the screenshots. The only evidence that James was indeed on that February 1, 2022 flight to Chicago, and that those Google Maps screenshots are indeed associated with his location history, is James’s contradictory declaration.

The Court is permitted to consider a witness’s bias, interest, or other motive when evaluating the credibility of his testimony (Evid. Code, § 780, subd. (f)) and here, the Court finds that, while the professional process server has no motive to lie about having successfully served Defendants, Defendants have a compelling motive to claim they were not served: once service is established and the unlawful detainer proceeds, Defendants will be evicted from the Premises. Defendants would reasonably want to avoid or delay this event. In light of this, the Court accords more weight to the process server’s declaration than James’s.

As for William, James’s declaration includes rather persuasive evidence that William flew from Los Angeles to Illinois on July 3, 2022: a luggage tag showing he checked baggage at Los Angeles International Airport on that date. (Defs. Decl. James Wayne Morgan Supp. Mot. Set Aside Default Judg. at PDF p. 9.) Given the security protocols at airports, it would be near impossible for William to have checked this baggage, in his name, without having identification and a flight out of Los Angeles scheduled for that same day. But of course, whether William was out-of-state on July 3, 2022 is irrelevant to whether he was at the Premises to accept service on June 11, 2022.

Looking at the entire record before it, the Court finds that Defendants have not overcome the presumption that service was effectuated on June 11, 2022. Therefore, the service on Defendants was sufficient to confer jurisdiction, and the Motion to Quash should have been denied. It follows that the default judgment based on this service was not void.

Because the default judgment was not void, there are no grounds for setting it aside.

Conclusion