Judge Randolph M. Hammock, Case 19STCV02395 2022-12-14 Tentative Ruling

Defendant now moves to vacate the default and default judgment. The matter first came for hearing on November 14, 2022. The Assignee at the time, Eugene Kim, requested a continuance to file an opposition. This court continued the hearing to the present date. The motion is now opposed by Plaintiff James Shin, who has been re-assigned the judgment.

Defendant objects to portions of the Declaration of James Shin. This court is unaware of any legal authority which requires a court to rule on evidentiary objections on a motion, except as to a motion for summary motion/adjudication (CCP § 437c (q)) or a special motion to strike (CCP § 425.16 (b)(2)); see also, Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-949.)

The court is in receipt of Plaintiff’s untimely opposition dated December 5, 2022. (See CCP § 1005(b) [“All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days…before the hearing.”]). Plaintiff filed a proof of service that same day purporting to verify service on Defendant by mail and email on December 4, 2022. Defendant, however, filed a “Notice of Non-Receipt of Opposition” on December 5, 2022.

Defendant first moves for relief under CCP section 473(d). This section provides that “[t]he court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” “[I]nclusion of the word “may” in the language of section 473, subdivision (d) makes it clear that a trial court retains discretion to grant or deny a motion to set aside a void judgment. [Citation.] However, the trial court has no statutory power under section 473, subdivision (d) to set aside a judgment that is not void.” (Kremerman v. White (2021) 71 Cal. App. 5th 358, 369.) “Generally, defendants have six months from entry of judgment to move to vacate. [Citation.] But, if ‘the judgment is void on its face, then the six month limit set by section 473 to make other motions to vacate a judgment does not apply.” [Citation.] (Id. 369-70.)

“A judgment ‘is considered void on its face only when the invalidity is apparent from an inspection of the judgment roll or court record without consideration of extrinsic evidence.’ [Citation.] When a default judgment has been taken, the judgment roll consists of ‘the summons, with the affidavit or proof of service; the complaint; the request for entry of default ..., and a copy of the judgment.’ (§ 670, subd. (a).) If the invalidity can be shown only through consideration of extrinsic evidence, such as declarations or testimony, the order/judgment is not void on its face.” [Citation.] (Id. at 370.) “To establish personal jurisdiction, compliance with statutory procedures for service of process is essential; if a default judgment was entered against a defendant who was not served with a summons as required by statute, the judgment is void, as the court lacked jurisdiction in a fundamental sense over the party and lacked authority to enter judgment.” (Kremerman v. White (2021) 71 Cal. App. 5th 358, 370.)

The Proof of Service of February 1, 2019, reflects personal service on Defendant at a McDonald’s at 10611 Pico Blvd., Los Angeles, CA 90064, at 1:39 pm. (See Proof of Service, 02/04/2019.) The process server was Nam Goong, who is not a registered process server. (Id.) The process server submitted a declaration of diligence, which states he “explained to [sic] nature of documents,” to the person served. (See Decl. of Diligence, 02/04/2019.) It further states that Defendant’s “’nationality’ is Latino,” his “English is very good,” “he is around 55-60 years old,” he has “Black hair” and “some of [sic] white hair too,” weights “about 170-180 Pounds,” and is “about 5.6’ tall.” (Id.) At the time of service, the Defendant was “wearing a dress-shirt, and dress pants.” (Id.)

Defendant contends that the Proof of Service is fraudulent, and that he was never served at McDonald’s or anywhere else. Defendant represents that he was working on the day of purported service and “nowhere near” the McDonald’s. (Mtn. 6: 4-5.) In support, Defendant says that while at work, he completed two “property evaluation reports,” attached as his Exhibits B-1 and B-2. The first property evaluation report includes a photo of a property at W. 87th Street, Los Angeles, CA 90045, with a timestamp on the photo of “02/01/2019” at “13:06.” (See Francia Decl, Exh. B-1.) The second property evaluation report includes a photo of the property at 17718 Regency Circ., Bellflower, CA 90706, with a timestamp showing “02/01/2019” at “13:55.” (See id., Exh. B-2.) Defendant also attaches a “Google Maps route inquiry,” showing it would take “58 minutes without traffic” to travel between the two addresses with a stop at McDonalds in between. (See Franica Decl., Exh. C.) Based on this evidence, Defendant asserts that it would be “impossible” for him “to have left the 64445 [sic] W. 87th Street address at 1:06 PM, stop at the subject McDonald’s restaurant on Pico Blvd to be served with a lawsuit Summons, and arrive at the Regency Circle address by 1:55 PM.” (Mtn. 8: 6-8.) Defendant contends he did not learn of this lawsuit until he “was personally served with a notice to appear for examination on or about July 26, 2022.” (Francia Decl. ¶ 11.)

Although Plaintiff fails to raise the points himself in opposition, relief under section 473(d) is unavailable here. First, the judgment is not void on its face. The Proof of Service shows proper service by personal delivery on Defendant. Personal service is service “by personal delivery” (Code Civ. Proc., § 415.10), and “‘usually contemplates actual delivery.’ ” (Crescendo Corp. v. Shelted, Inc. (1968) 267 Cal.App.2d 209, 212; Sternbeck v. Buck (1957) 148 Cal.App.2d 829, 832 [“ ‘Personal service’ means the actual delivery of the papers ... in person.”].) Defendant’s contention that he was not present at the place of service necessarily requires resort to evidence outside of the judgment roll. Thus, because the judgment is not void on its face, Defendant had to bring this motion within six-months from entry of judgment—that deadline fell on or about February 12, 2020. (People v. N. River Ins. Co. (2020) 48 Cal. App. 5th 226, 233 [“Once six months have elapsed since the entry of a judgment [or order], ‘a trial court may grant a motion to set aside [a] judgment [or order] as void only if the judgment [or order] is void on its face.’ [Citation.]” Defendant did not bring this motion until October 5, 2022. It is therefore untimely. [FN 1]

Defendant also moves to set aside the default based on the court’s equitable power to set aside judgments based on extrinsic fraud. “[E]ven where relief is no longer available under statutory provisions, a trial court generally retains the inherent power to vacate a default judgment or order on equitable grounds where a party establishes that the judgment or order ... resulted from extrinsic fraud or mistake.” (County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1228.) “[T]he party seeking equitable relief on the grounds of extrinsic fraud or mistake must show three elements: (1) a meritorious defense (2) a satisfactory excuse for not presenting a defense in the first place; and (3) diligence in seeking to set aside the [order] once discovered.”

Defendant contends he did not learn of this lawsuit until he “was personally served with a notice to appear for examination on or about July 26, 2022.” (Francia Decl. ¶ 11.) Defendant contends that he has “never owed any financial obligations to [Plaintiff] James Shin,” and disagrees that Shin was a party to any contract or that he purchased any contractual rights. (Id. ¶ 8.) He also disagrees that the Complaint’s “Addendum A Rent Schedule” constitutes a promissory note or other promise to pay an indebtedness. (Id. ¶ 9.)

If the court accepts Defendant’s evidence purporting to show his whereabouts on the day of service, then it does appear unlikely that Defendant was served at the subject McDonald’s at the time recorded in the proof of service. Defendant’s two timestamped “property evaluation reports” discussed above createa a reasonable question of valid service. This court notes the current absence of any compelling opposition by Plaintiff—such as a declaration from the process server—showing valid service or defending the merits of the default judgment. In opposition, Plaintiff contends only that service was proper and Defendant is “l[ying] about not being served.” (Opp. ¶ 2.)

Here, Defendant’s evidence does not necessarily demonstrate that the judgment is void. There is no current competent evidence before this Court to verify that Defendant himself took the photographs in the property evaluation reports, or that the time-stamp overlaying the photos accurately reflects the time they were taken. This defeats the argument even if the court accepts Defendant’s contention that it was, in fact, impossible to travel between the three locations within the relevant time period.

Second, Defendant has not shown by competent or compelling evidence that the action was a “fraudulent scheme” by Plaintiff to which Defendant can present a meritorious defense. (Mtn. 10: 10-11.) To the contrary, the record shows that Defendant was prima facie personally served on February 1, 2019, that Defendant failed to answer the Complaint, that Plaintiff testified at a default prove-up hearing on August 12, 2019, and that judgment was validly entered thereafter. For these reasons, Defendant has not demonstrated extrinsic fraud in obtaining the default or default judgment. “Because of the strong public policy in favor of the finality of judgments, equitable relief from a default judgment or order is available only in exceptional circumstances.” (Cnty. of San Diego v. Gorham (2010) 186 Cal. App. 4th 1215, 1229–30.)

On the other hand, this court could possibly find that Defendant was not properly served, that Defendant diligently sought relief after learning of the default judgment against him, and that perhaps the Defendant has a meritorious defense. Although courts must be “mindful of the strong policy favoring finality of judgments,” Defendant may have been wrongfully deprived of “the opportunity to be heard ‘at a meaningful time and in a meaningful manner.” (Cnty. of San Diego v. Gorham (2010) 186 Cal. App. 4th 1215, 1234.)