Judge Randolph M. Hammock, Case 22STCV17082 2022-10-06 Tentative Ruling

Judge: Randolph M. Hammock, Case: 22STCV17082, Date: 2022-10-06 Tentative Ruling

Plaintiff Lea Francisco brings this action against Defendant Francisco Garcia. Plaintiff alleges that Defendant, holding himself out as a “real estate investor,” deceived Plaintiff into investing in the purchase and sale of two properties. Plaintiff provided her name and credit, as well as a $21,033.00 cash “down-payment.” Defendant then tricked Plaintiff into signing loan documents and two (2) quitclaim deeds, transferring titles to both properties free and clear to Defendant. Defendant also placed Plaintiff’s name on the finance mortgage loans. Thereafter, and without Plaintiff’s knowledge or consent, Defendant transferred title to both properties. Plaintiff remains a guarantor on both mortgage loans. Plaintiff asserts causes of action for (1) declaratory relief, (2) quiet title, (3) fraud and deceit, (4) intentional misrepresentation, (5) constructive trust, and (6) cancellation of instrument.

Defendant’s Motion to Set Aside Default is DENIED based upon the legal and factual reasons set forth in Defendant’s motion. However, the Court may still GRANT the requested relief under its discretionary powers ser forth in CCP § 473 (b), upon certain terms and conditions. The Court will hear further arguments in that regard at the hearing.

When 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 or her of a written notice that the default or default judgment has been entered.

The Proof of Service on the Summons and Complaint, filed July 29, 2022, reflects personal service on Defendant Francisco Garcia at 15155 Tyler Street, Apt. 107, Slymar, CA 91342. (See Proof of Service, 07/27/22) Service occurred on June 26, 2022, at 7:22 pm. (Id.) Plaintiff submits the declaration of the process server, Jesus Guerra. Guerra stands by his service on Defendant reflected in the personal service. Guerra further states that he “made numerous attempts to serve Mr. Garcia,” before the June 26, 2022, service date, “all of which had been unsuccessful.” (Guerra Decl. ¶ 10.) He then attempted service at Defendant’s brother’s residence. Guerra states:

After I knocked on the apartment door, the door was opened by a woman. I identified myself to the woman and asked if Mr. Garcia was in the apartment. The woman left and returned shortly with a man. I identified myself to the man and asked if he was Mr. Garcia to which he responded that yes, he was Mr. Garcia.

Defendant, however, states in his declaration that he “was never personally served with the summons and complaint in this case.” (Francisco Decl. 3.) He states he has never lived at 15155 Tyler Street—that is the address of his brother Martin Hernandez’s home. (Id.) Defendant claims to reside at 38045 Boxthorn Street in Palmdale. During the time of service, Defendant claims he was attending church in Palmdale. (Id. at 7.)

Defendant further states that he received a phone call from his brother Martin on July 10, 2022. (Id. at 11.) Martin told Defendant that “his wife Socorro had found an envelope on their front doorstep.” (Id.). Defendant received the envelope and documents “[d]ays later.” (Id. at 13.) Once Defendant read the documents and realized he had 30 days to respond, he contacted his attorney in “mid August 2022.” (Id. at 15.)

First, Defendant’s version of events is difficult to believe. Defendant explains the attempted service only in vague terms—an envelope appearing on his brother’s front doorstep two weeks after the date of service reflected on the Proof of Service. The envelope then made its way to defendant “days later,” and Defendant contacted his attorney in mid-August.

Second, even accepting that Defendant in-fact received the documents within days of July 10, 2022, that means Defendant still waited approximately one month to contact an attorney in mid-August. This is unreasonable in light of the concession that Defendant “realized that [he] had 30 days to respond” to the lawsuit (Decl. ¶ 14). Thus, even if Defendant’s version of events was credible, Defendant was not diligent in his defense.

Finally, and perhaps most important, it appears that Defendant had actual knowledge of the lawsuit between him and Plaintiff. Plaintiff provides an email Defendant purportedly sent her on June 26, 2022—about two hours before the alleged service of summons occurred—in which Defendant accuses Plaintiff of “l[ying] to [her] attorney” and “start[ing] a lawsuit against” him. (P’s Exh. 1.) This suggests Defendant had actual notice of the pending lawsuit no later than June 26, 2022, and also supports the process server’s assertion that he made “numerous attempts” to serve the Defendant prior to that date. [FN 1] (See Tunis v. Barrow (1986) 184 Cal.3d 1069, 1077-1078 [A defendant seeking relief under CCP § 473.5 must show that his or her lack of actual notice in time to defend was not caused by inexcusable neglect or avoidance of service.”].)

Defendant also moves for relief under section 473(d). [FN 2] 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.)

“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.) 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.”].) “The individual upon whom the process server attempts to make personal service by manual delivery may not be heard to claim that service was improper because he refused to accept service.” (Crescendo Corp., supra, 267 Cal.App.2d at p. 213.)

Here, there is no evidence the default is void. To the contrary, the evidence suggests that Defendant was properly served with the summons and complaint on June 26, 2022. (See Proof of Service.) It also suggests that Defendant was aware of the pending lawsuit and may have attempted to avoid service. Service by a registered process server creates a presumption which Defendant must overcome by admissible evidence—as explained above, he has failed to do so. Thus, Defendant cannot find relief under section 473(d).

Be that as it may, the Court may still GRANT the requested relief under its discretionary powers ser forth in CCP § 473 (b), upon certain terms and conditions. The Court will hear further arguments in that regard at the hearing.

Judge of the Superior Court

FN 1 - Notably, Defendant has not filed a Reply brief contesting this point.

FN 2 This court notes that Defendant relies on CCP section 473(d), but has not invoked section 473(b) relief for “mistake, inadvertence, surprise, or excusable neglect.”

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.