Judge: Ralph C. Hofer, Case: 22GDCV00595, Date: 2023-02-24 Tentative Ruling

Case Number: 22GDCV00595    Hearing Date: February 24, 2023    Dept: D


Calendar: 9
Date: 2/24/2023
Case No: 22 GDCV00595 Trial Date:  None Set 
Case Name: Akopyan v. Airapetian, et al. 

Moving Party: Specially Appearing Defendant Anna Airapetian       
Respoding Party: Plaintiff Edvard Akopyan 

Set aside default (entered December 13, 2022) 
Quash service of summons 

Plaintiff Edvard Akopyan alleges that defendants Ana Airapetian and Tamara S. Chirkalina became indebted to plaintiff in the sums of money of $17,000 and $25,000 for plaintiff’s services rendered and failed to repay the money by issuing a check in the amount of $17,000 from a closed account and refusing to pay the amount of $25,000 when requested. 

The file shows that on December 13, 2022, default was entered against moving defendant Anna Airapetian, based on proof of service showing the summons and complaint were served by substituted service on September 29, 2022, at defendant’s usual place of business in New York, NY by leaving the documents in the presence of Jessica Biever, Co-Worker.  The papers were thereafter mailed to the service address on September 30, 2022.  Service was made by a person who is not a registered California process server. 

Specially appearing defendant Anna Airapetian seeks an order setting aside the default entered against defendant and quashing service of summons. 

Defendant argues that the alleged service of the summons and complaint was made by substituted service on a “Jessica Biever-Co-Worker,” a person defendant does not know, has never met, and who has not been authorized to accept service of process on behalf of defendant, and that the address where the documents were served is not the address for defendant’s usual place of business, but is the office for the global headquarters of her employer.  [Airapetian Decl., paras. 6, 7].  The declaration of diligence accompanying the proof of service indicates service was originally attempted at another address in New York, where defendant also indicates she has never lived or worked.  [Decl., paras. 7-8].  

Defendant seeks relief under CCP § 473(d), under which the court may, “on motion of either party after notice to the other party, set aside any void judgment or order.”       

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, citing, e.g., Nagel v. P & M Distributors, Inc. (1969) 273 Cal.App.2d 176; see also Strathvale Holdings v. E.B.H. (2005, 2nd Dist.) 126 Cal.App.4th 1241, 1250  (“Lack of personal jurisdiction renders a judgment (or default) void, and the default may be directly challenged at any time.”).  Where there was never valid service of summons, the court must set aside the default even where there is no showing of a meritorious defense.   Peralta v. Heights Medical Center, Inc.  (1988) 485 U.S. 80, 86-87.

Here, default was entered based on a proof of service stating defendant Airapetian was served by substituted service on September 29, 2022 at her usual place of business, on “Jessica Biever, Co-Worker,” by a person who is not a registered California service processor.  [See POS, filed 11/30/22].  

Under CCP § 415.20(b):
“(b) If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served…a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage pre-paid to the person to be served at the place where a copy of the summons and complaint were left.  Service of a summons in this manner is deemed complete on the 10th day after the mailing.” 

With respect to a challenge to service,  the burden is on plaintiff to demonstrate by a preponderance of the evidence that all jurisdictional criteria are met.  Mihlon v. Superior Court (1985, 2nd Dist.) 169 Cal.App.3d 703, 710;  Ziller Electronics Lab GmbH v. Superior Court (1988, 2nd Dist.) 206 Cal.App.3d 1222, 1232-1233.   Plaintiff must make this showing based on admissible evidence.  Ziller Electronics, at 1233; see also Evangelize China Fellowship, Inc. v. Evangelize China Fellowship (1983, 2nd Dist.) 146 Cal.App.3d 440, 444.

As noted above, defendant has submitted a declaration indicating that the service address is not her usual place of business, and that service was not made on a person authorized to accept service on her behalf.   [Airapetian Decl., paras. 5-8].  Defendant states with respect to the service address, “I have never worked at the Compass office located at this address and it is not my usual place of business. The address is also not my residence.”   [Airapetian Decl., para. 7].  The moving papers also indicate that the initial service attempt of the three described attempts was on an address with which defendant has no affiliation.  [Airapetian Decl., para. 8]. The proof of service declaration of diligence itself states that the process server was “not able to find the address,” and that someone informed the server the address did not exist.  [POS, Decl., “Serve Attempt #1]. 

The Official Comment of the Judicial Council in connection with CCP section 415.20, subdivision (b) states, in pertinent part, “The term ‘usual place of business’ includes a defendant’s customary place of employment as well as his own business enterprise.”  The place of service here does not appear to fall within either of these definitions. 

In response to defendant’s showing, plaintiff has not submitted any additional evidence to show why the service address was appropriate.   

Plaintiff in opposition argues that if a registered process server served the summons and complaint, there is a presumption that service was proper under Evidence Code § 647, and plaintiff requests that the court presume that service was proper and deny defendant’s motion.  

Evidence Code § 647 provides:
“The return of a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.”
The proof of service executed by the process server checks the box stating, with respect to the “Person who served papers,” “I Am: not a registered California process server.”  [POS, para. 7, 7(e)(1)].   The process served accordingly was not registered pursuant to the applicable California Business and Professions Code sections, and plaintiff has submitted no evidence otherwise.  It is not clear why plaintiff is arguing that the server was a registered process server, and to the extent plaintiff may be arguing that the process server was registered in some other state, that would not satisfy the statutory requirements of the California Evidence Code upon which plaintiff relies. Plaintiff accordingly is not entitled to any presumption under Evidence Code section 647.  

In any case, the presumption is clearly a rebuttable presumption, which has been rebutted here by plaintiff’s production of evidence, in the form of her declaration under oath, indicating the facts stated in the return are not correct, as service was not made at her usual place of business. 

Where the parties’ evidence conflict on the jurisdictional facts, the trial court must determine credibility.   Its decision will not be disturbed on appeal as long as it is supported by substantial evidence.  Evangelize China Fellowship, Inc. v. Evangelize China Fellowship (1983, 2nd Dist.) 146 Cal.App.3d 440, 444.

Plaintiff relies solely on the proof of service and has not come forward with conflicting evidence as to defendant’s declaration, such as a declaration of the process server or evidence suggesting that the service address was in fact defendant’s usual place of business or usual mailing address.  Plaintiff accordingly has failed to establish that service was properly made and failed to meet plaintiff’s burden to show that jurisdiction has been established by a preponderance of the evidence.  Defendant’s declaration provides substantial evidence in support of the determination that service was not appropriately made at defendant’s usual place of business, which the court finds credible.  The motion to set aside the default is granted on the ground the default is void as based on improper service of summons. 

The motion also seeks to quash service of summons on the ground plaintiff cannot establish grounds for exercising personal jurisdiction over defendant, who does not reside in the State of California.   Since the service of the summons has been deemed void, this request to quash the service is moot, as there is no service surviving to quash, and such relief is not necessary or appropriate at this time.  Plaintiff is required to properly serve the summons and complaint on moving defendant, and, if appropriate, defendant may move to quash any further service on that ground, or any other appropriate ground.   

Specially Appearing Defendant Anna Airapetian’s Motion to Set Aside Entry of Default and Quash Service of Summons for Lack of Jurisdiction:
Motion to Set Aside Entry of Default is GRANTED pursuant to CCP § 473(d).  Default entered against moving defendant Anna Airapetian on December 13, 2022 is set aside as void, as based on improper service. 

Request to Quash Service of Summons for Lack of Jurisdiction is MOOT in light of the determination that the default is void based on improper service of summons, so there is no outstanding service of summons to quash. 


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