Judge: Michael E. Whitaker, Case: 21STCV35131, Date: 2023-01-26 Tentative Ruling

Case Number: 21STCV35131    Hearing Date: January 26, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

              Defendant Ricardo Macias Espinosa (Defendant) moves to set aside the Clerk of the Court’s December 14, 2021, entry of default.  Defendant also moves to quash the service of the summons and complaint by Plaintiff Adreana Gonzalez (Plaintiff).  Plaintiff opposes the motion.  Defendant replies.

ANALYSIS

1. MOTION TO QUASH

Defendant moves to quash Plaintiff’s service of the summons and complaint on Defendant via personal service under Code of Civil Procedure section 418.10.  The Court finds, however, that is it without jurisdiction to consider the motion to quash.  (See W.A. Rose Co. v. Municipal Court (1959) 16 Cal.App.2d 67, 72 [entry of default deprives the court of jurisdiction to consider any motion other than a motion for relief from default].)

1. MOTION TO SET ASIDE DEFAULT

    

Per Code of Civil Procedure section 473, subdivision (b), a court may “upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. 

Per Code of Civil Procedure section 473.5, “[w]hen 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 of a written notice that the default or default judgment has been entered.”  (Code Civ. Proc., § 473.5, subd. (a).)  A notice of motion to set aside a default or default judgment and for leave to defend the action “shall be accompanied by an affidavit showing under oath that the party’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect.  The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.”  (Code Civ. Proc., § 473.5, subd. (b).)  “Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.”  (Code Civ. Proc., § 473.5, subd. (c).) 

Under Code of Civil Procedure section 415.10 et seq., a defendant may be served either (1) by personal delivery to the defendant (Code Civ. Proc., § 415.10); (2) by substitute service (Code Civ. Proc., § 415.20); (3) by mail coupled with acknowledgement of receipt (Code Civ. Proc., § 415.30); or (4) by publication (Code Civ. Proc., § 415.50).  Code of Civil Procedure section 415.10 provides: “A summons may be served by personal delivery of a copy of the summons and complaint to the person to be served.  Service of a summons in this manner is deemed complete at the time of such delivery.”  A declaration of service by a registered process server establishes a presumption that the facts stated in the declaration are true. (Evid. Code, § 647; Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750; see also Floveyor International, Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795 [filing a proof of service that complies with statutory standards creates a rebuttable presumption that service was proper].).)

            Here, on December 13, 2021, Plaintiff filed a proof of service of the summons and complaint on Defendant by personal service.  The proof of service states the process server delivered the summons and complaint, among other documents, on Ricardo Macias Espinoza at 21817 Elaine Ave Hawaiian Gardens, CA 90716-1404 on October 1, 2021 at 11:49 AM.  (See December 13, 2021 Proof of Service.)

Defendant advances his own declaration.  Defendant avers that he was residing at 21817 Elaine Ave., Hawaiian Gardens, CA 90716, however on October 1, 2021, the date of alleged service, he was residing at 22430 Devlin Ave., Hawaiian Gardens, CA 90716.  (Declaration of Ricardo Macias Espinosa, ¶ 2.)  Defendant states that he never personally received a copy of the summons and complaint in this matter or any other documents related to the litigation.  (Declaration of Ricardo Macias Espinosa, ¶ 3.)  Finally, Defendant states if he had been served, he would have immediately notified his insurance company.  (Declaration of Ricardo Macias Espinosa, ¶ 7.)

In opposition, Plaintiff argues that service of the summons and complaint was properly perfected on Defendant by personal service.  Plaintiff avers that Defendant’s residence at 21817 Elaine Ave. is confirmed by the traffic collision report and Defendant’s license.  Plaintiff states he also faxed/emailed a courtesy copy to Defendant’s insurance on September 24, 2021.  (See Exhibit B.)  Plaintiff highlights that the process servicer’s declaration states Defendant was personally served and concludes the process server does not have a motive to misrepresent facts. 

Here, the Court finds Defendant has not advanced sufficient competent evidence to rebut the presumption that service of the summons and complaint as reflected in the proof of service was proper.  Other than the blanket claim that he resided at 22430 Devlin Avenue on October 1, 2021, Defendant does not proffer any other evidence substantiating his assertion.  For example, he does not provide a rental or lease agreement, utility bill or declaration/affidavit from a third-party who has personal knowledge of his residence on October 1, 2021.  This is a simple failure of proof on the part of Defendant, and without more, the Court does not find Defendant’s statement to be credible or of much weight. 

CONCLUSION AND ORDER

            Therefore, the Court denies Defendant’s motion to quash the service of the summons and complaint and to set aside the Clerk of the Court’s December 14, 2021 entry of default.

            The Clerk of the Court shall provide notice of the Court’s ruling.