Judge: Nathan R. Scott, Case: Frisby v. 5G Aviation, Date: 2022-10-14 Tentative Ruling

Motion to Vacate

Specially appearing defendants Gregory Morris, Gauntlet Aerospace LLC, Omega Warbirds LLC, and CCLL Holdings LLC’s motion to vacate is granted.

The 6/14/22 entry of default is vacated.

The court sets an OSC re dismissal (failure to serve) for 12/7/22 at 2 pm.

Plaintiff Samuel Tyrel Frisby has not met his burden to show the court secured personal jurisdiction over these defendants, as plaintiff has not shown he served them with the summons.  (See Code Civ. Proc., § 418.10(a)(1).)   

“[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction.  Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.”  (Kremerman v. White (2021) 71 Cal.App. 5th 358, 371, cleaned up.)

As defendant notes, no summons was ever issued. 

The court’s electronic filing system confirms the court rejected the summons on 1/25/20 because the “Names of parties on summons must match complaint exactly” and “Additional Parties Attachment form must be attached to original summons under the same PDF within the same transaction.”

Plaintiff states he served a summons marked at the top as ROA #4.  The court’s electronic filing system shows ROA #4 is a first appearance fee receipt, not a summons.

Specially appearing defendants shall give notice.

Order to Show Cause

The OSC re dismissal (entry of default judgment) is vacated.