Judge: Robert B. Broadbelt, Case: 21STCV31551, Date: 2022-10-21 Tentative Ruling

Case Number: 21STCV31551    Hearing Date: October 21, 2022    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:             Defendants Giovanni & Son, LLC and Lisa Mirizzi

RESPONDING PARTY:       Unopposed

Motion to Set Aside Void Judgment and Quash Service of Summons

The court considered the moving papers filed in connection with this motion.  No opposition papers were filed.

DISCUSSION

Defendants Giovanni & Son, LLC (“Giovanni & Son”) and Lisa Mirizzi (“Mirizzi”) (collectively, “Defendants”) move the court for an order (1) setting aside the default and default judgment entered against them and in favor of plaintiff Bellflower First Plaza, LLC (“Plaintiff”), and (2) quashing the service of summons.  Defendants move for this relief on the ground that they were not served with the summons and complaint.

The court grants Defendants’ motion to set aside the default judgment and quash service of summons.  (Code Civ. Proc., §§ 473, subd. (d), 418.10, subd. (a)(1).)

First, the court finds that Defendants have presented evidence establishing that they were not properly served with the summons and complaint in this action. 

“[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.)  The court has the discretion to, “on motion of either party after notice to the other party, set aside any void judgment or order.”  (Code Civ. Proc., § 473, subd. (d).) 

On October 1, 2021, Plaintiff filed two Proofs of Service, stating that Defendants were personally served with the summons and complaint on August 31, 2021, at 9:00 a.m.  (Oct. 1, 2021 POS-010, ¶¶ 2-3, 5, subd. (a).)  Default was entered against Defendants on October 27, 2021, and the court entered judgment by default against Defendants in the sum of $39,831.97 on January 3, 2022.

The Proofs of Service submitted by Plaintiff, as set forth above, state that defendant  Mirizzi was personally served on her own behalf, and on behalf of defendant Giovanni & Son.  Because the Proofs of Service were signed by a registered California process server, Evidence Code section 647 sets forth “a presumption, affecting the burden of producing evidence, of the facts stated in the return.”  (Fernandes v. Singh (2017) 16 Cal.App.5th 932, 940 [emphasis in original]; Oct. 1, 2021 POS-010, ¶¶ 7, subd. (e)(3); Evid. Code, § 647.)  This presumption is rebuttable, and “arises only if the proof of service complies with the applicable statutory requirements.”  (Floveyor International, Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.)

The court finds that the Proofs of Service signed by a registered California process server and filed by Plaintiff, evidencing personal service on both Defendants, establishes a rebuttable presumption that the service was proper and requires Defendants to produce evidence that they were not served.  (Evid. Code, § 647; American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390.)

The court finds that Defendants have met their burden of rebutting the presumption under Evidence Code section 647 by submitting defendant Mirizzi’s declaration, which establishes that Defendants were not served with the summons and complaint.  Mirizzi states that (1) she does not recall “anyone ever trying to deliver to [her] the Summons and/or Complaint in this action”; (2) she only discovered this lawsuit in the spring of 2022, when she discovered a judgment lien during a credit check; and (3) although she recalls an incident involving an adult male “thr[owing] a stack of papers into the fenced off parking lot behind the retail store,” defendant Giovanni & Son, the papers blew through the fence posts.  (Mirizzi Decl., ¶¶ 2-3.)

The court finds that Defendants have presented evidence establishing that they were not properly served with Plaintiff’s summons and complaint.  Mirizzi, who is identified as the party personally served on behalf of herself and defendant Giovanni & Son, states in her declaration that she was unable to recall a process server or other individual serving her with the requisite documents, and that she “only discovered this lawsuit when [Mirizzi] discovered a judgment lien during a credit check and hired a lawyer to investigate in the spring of 2022.”  (Mirizzi Decl., ¶ 2.)  The court finds this evidence sufficiently demonstrates that Defendants were not properly served with the summons and complaint.  Moreover, Plaintiff failed to oppose Defendants’ motion, and has therefore failed to present evidence or argument establishing that Defendants were served in compliance with the Code of Civil Procedure.

The court therefore grants Defendants’ motion to set aside the default and default judgment as void for improper service.  (Code Civ. Proc., § 473, subd. (d).)

Second, the court finds that Defendants have established that, because they have not been served with the summons and complaint, the court does not have personal jurisdiction over Defendants.  (Code Civ. Proc., § 418.10, subd. (a)(1); Stancil v. Superior Court (2021) 11 Cal.5th 381, 392 [“a court gains jurisdiction over the defendant from the time the defendant is served with a copy of the summons and the complaint on which it’s based, as required under the Code of Civil Procedure”].)  The court therefore grants the motion to quash service of summons.  (Ibid.)

ORDER

            The court grants defendants Giovanni & Son, LLC and Lisa Mirizzi’s motion to set aside judgment and to quash service of summons.  (Code Civ. Proc., §§ 473, subd. (d), 418.10, subd. (a)(1).)

The court orders that the defaults entered against defendants Giovanni & Son, LLC and Lisa Mirizzi on October 27, 2021 are set aside.

The court orders that the default judgment entered against defendants Giovanni & Son, LLC and Lisa Mirizzi on January 3, 2022 is set aside. 

The court sets a Case Management Conference on ______________, 2023, in Department 53, at 8:30 a.m.

The court sets an Order to Show Cause re Failure to File Proof of Service of Summons and Complaint on ______________, 2023, in Department 53, at 8:30 a.m.

The court orders defendants Giovanni & Son, LLC and Lisa Mirizzi to give notice of this order. 

IT IS SO ORDERED.

DATED:  October 21, 2022

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court