Judge: Robert B. Broadbelt, Case: 21STCV31551, Date: 2023-04-24 Tentative Ruling

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Case Number: 21STCV31551    Hearing Date: April 24, 2023    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:       Plaintiff Bellflower First Plaza, LLC

Motion to Set Aside Void Judgment and Quash Service of Summons

The court considered the moving, opposition, and reply papers filed in connection with this motion.

REQUEST FOR JUDICIAL NOTICE

The court denies defendants Giovanni & Son, LLC and Lisa Mirizzi’s request for judicial notice because it is not “relevant to a material issue” presented by this motion.  (Malek Media Group LLC v. AXQG Corp. (2020) 58 Cal.App.5th 817, 825.)

DISCUSSION

On October 21, 2022, the court granted the unopposed motion to set aside void judgment and quash service of summons filed on June 2, 2022 by defendants Giovanni & Son, LLC (“Giovanni & Son”) and Lisa Mirizzi (“Mirizzi”) (collectively, “Defendants”).  On January 10, 2023, the court granted the motion to set aside the court’s October 21, 2022 order filed by plaintiff Bellflower First Plaza, LLC (“Plaintiff”) on the ground that the order was taken against Plaintiff through its surprise since Plaintiff was not served with the moving papers.  The court (1) vacated the October 21, 2022 order, and (2) reset Defendants’ motion for hearing on April 24, 2023.

Defendants move the court for an order (1) setting aside the defaults and default judgment entered against them and in favor of Plaintiff, and (2) quashing the service of summons.  Defendants move for this relief on the ground that they were never served with the summons and complaint.

The court denies Defendants’ motion because the court finds that Plaintiff has established that Defendants were properly served with the summons and complaint in this action.  (Code Civ. Proc., § 473, subd. (d), 418.10, subd. (a)(1).)

“[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).)  Thus, “‘[u]nder section 473, subdivision (d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service.’”  (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1200.)  “When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.’”  (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.)

Plaintiff filed two Proofs of Service with the court on October 1, 2021, stating that Defendants were served with the summons and complaint by personal service on August 31, 2021, at 9:00 a.m.  (Oct. 1, 2021 POS-010 Forms, ¶¶ 2, subds. (a), (b), 3, 5, subd. (a).)  The Proofs of Service were signed by a registered California process server.  (Id. at ¶ 7, subd. (e)(3).)  Thus, although Plaintiff has the burden to prove jurisdiction by proving effective service, the return of the registered process server establishes a presumption of the facts stated in the Proofs of Service and therefore requires Defendants to produce evidence that they were not served.  (Evid. Code, § 647; Fernandes v. Singh (2017) 16 Cal.App.5th 932, 940 [“The return of a registered process server ‘establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return’”].) 

The court finds that Defendants have met their burden to produce evidence that they were not served.

The Proofs of Service state that defendant Mirizzi was personally served (1) on behalf of herself, and (2) on behalf of defendant Giovanni & Son.  In her declaration, Mirizzi states that (1) she “do[es] not recall anyone ever trying to deliver to [her] the Summons and/or Complaint in this action[;]” (2) she discovered this lawsuit in the spring of 2022 upon discovering a judgment lien during a credit check; and (3) she was informed that Plaintiff had a picture of her being served with the summons and complaint in this action and recalled an incident “when an adult male threw a stack of papers into the fenced parking lot behind the retail store,” but the papers “began to scatter by the wind” and “immediately blew through the fence posts of the wrought iron fence and into the common alley….”  (Mirizzi Decl., ¶¶ 2-3.)  Defendants submitted an additional declaration from Mirizzi on January 23, 2023, in which Mirizzi states that (1) she reviewed the photograph attached to the declaration of Luqman Kuraym, and (2) although she is holding some papers in this photograph, those were only “some of the papers that were thrown through the fence and picked up by [Mirizzi] that had not blown down the alley (beyond the right edge of the photograph).”  (January 23, 2023 Mirizzi Decl., ¶ 2.)  She states that, “[s]pecifically, the papers that [she was] holding are not all of the papers that were tossed through the fence by the unidentified man.”  (Ibid.)  Mirizzi did not “retrieve the other papers that blew down the alley.”  (January 23, 2023 Mirizzi Decl., ¶ 3.)  

The court finds that this evidence is sufficient to rebut the presumption of the facts stated in the Proofs of Service completed by a registered process server.

The court finds that Plaintiff has met its burden to prove the facts requisite to effective service.

Plaintiff submits the declaration of Luqman Kuraym (“Kuraym”), the process server that served Defendants and completed the Proofs of Service, dated August 31, 2021.  Kuraym states the following:  (1) on August 31, 2021, he identified himself as a process server and informed Mirizzi that he had court documents for her; (2) Mirizzi approached the fence but refused to take the packet of papers, so he dropped the court documents through the fence; (3) Mirizzi picked up the papers, which included the summons and complaint in this action; (4) he “stapled the packet of papers,” as he “always do[es] with personal service paperwork[;]” (5) when Mirizzi picked up the papers, “the packet was still stapled together[;]” and (6) “[a]t the time of service, there was not a strong wind that would have blown the papers through the fence.”  (Kuraym Decl., ¶¶ 4-7.)  Plaintiff attaches a photo of Mirizzi holding documents taken by Kuraym at the time of service.  (Kuraym Decl., ¶ 5; Kuraym Decl., Ex. A.)  Kuraym further states that the documents held by Mirizzi in the photograph included the summons and complaint.  (Kuraym Decl., ¶ 5.)  

The court finds that this evidence is credible and is sufficient to establish that Defendants were properly served with the summons and complaint by personal service on August 31, 2021.  Although Mirizzi contends that she did not receive the summons and complaint in this action because the papers were blown away by the wind, the court finds that Plaintiff has submitted credible evidence disproving that contention.  First, Kuraym has stated in his declaration that he “stapled the packet of papers” served on Defendants.  (Kuraym Decl., ¶ 6.)  Second, Plaintiff has attached a photograph showing Mirizzi holding a stack of documents.  (Kuraym Decl., Ex. A.)  Thus, Mirizzi’s contention that the wind blew away the documents cannot be reconciled with (1) Kuraym’s statement that he stapled the papers together before service, (2) Kuraym’s statement that the packet was still stapled when Defendant picked it up, and (3) the photographic evidence showing Mirizzi holding the papers.  Taken together, Plaintiff’s evidence shows that it would not be possible for only “some” of the papers in a stapled packet to have been blown away in the wind.  (Kuraym Decl., ¶ 6; Kuraym Decl., Ex. A.)  Third, the court notes that the photograph shows no other papers on the ground or around Mirizzi.  Based on the evidence presented, the court finds Kuraym’s testimony in his declaration and the two Proofs of Service he signed to be credible, and the court finds Mirizzi’s testimony in her two declarations not to be credible.  The court therefore finds that the evidence presented shows that Defendants were personally served with the summons and complaint in this action by Kuraym on August 31, 2021.    

Although the court notes that Defendants contend that the factual disputes regarding service weigh in favor of setting aside the default and default judgment, the court disagrees.  The court is not required to accept Mirizzi’s declaration contradicting the credible evidence submitted by Plaintiff, and has found, for the reasons set forth above, that Plaintiff has met its burden of showing effective service irrespective of any contradictory evidence that the court has found not to be credible.  (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390.)

The court therefore finds that, upon review of the evidence and arguments presented by the parties, Plaintiff has established “all the facts requisite to an effective service.”  (Summers, supra, 140 Cal.App.4th at p. 413.) 

ORDER

The court denies defendants Giovanni & Son, LLC and Lisa Mirizzi’s motion to set aside void judgment and quash service of summons.

The Judgment by default entered in this action on January 3, 2022, shall remain in full force and effect. 

The court directs the clerk to strike the following words that the clerk added on page 1 of the Judgment by default entered in this action on January 3, 2022:  “Judgment set aside and vacated 10/21/22” and “Judgment set aside and vacated on 10/21/22.” 

The court orders plaintiff Bellflower First Plaza, LCL to give notice of this ruling.

IT IS SO ORDERED.

DATED:  April 24, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court