Judge Robert S. Draper, Case 22STCV24030 2023-04-25 Tentative Ruling

The Court notes that this motion was brought pursuant to CCP Section 473(d), based on a claim of lack of proper service, not Section 473(b).

The Court notes that if there is any proper motion brought with a sufficient legal basis for setting aside the defaults, the Court would grant such a motion. The Court notes that Defendants offered to accept service through their attorney if Plaintiff would set aside the defaults. The Court urges the parties to meet and confer to see an agreement may be reached.

Plaintiff Wells Fargo Bank, N.A. (“Plaintiff”) made numerous loans to defendant corporations MD Group, Inc., MDM Nursing Registry, and International Nursing Registry (together “Corporate Defendants”). Defendant Mildred Deang (“Deang” and together with Corporate Defendants, “Defendants”) served as guarantor for these loans. Defendants have failed to repay the business loans contrary to the terms of the agreements.

On September 8, 2022, Plaintiff filed Proofs of Service as to all Defendants. The Proofs of Service indicate that Deang was served by substitute service on August 27, 2022, while the Corporate Defendants were served by substitute service on August 14, 2022.

Section 473(d) provides that “[t]he court may . . . on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc., § 473(d).) A default judgment is void against a defendant who was not served with a summons in the manner prescribed by statute. (See Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 858.) Relief pursuant to section 473(d) may be made at any time. (See Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.)

CCP section 415.20 provides that “[i]f 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 . . . in the presence of a competent member of the household . . . 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 . . . .” (Code Civ. Proc., § 415.20(b).)

Where service is carried out by a registered process server, Evidence Code § 647 applies to eliminate the necessity of calling the process server as a witness as trial. (Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1427.) The proof of service in this circumstance establishes a presumption, affecting the burden of producing evidence of the facts stated in the return. (Id. at 1428.) “The effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence. . .” (Id.)

Here, Nava attests that he served Deang by substitute service on August 27, 2022, at 4:20 pm. (Nava Decl. ¶ 6.) At that time, Nava approached Deang’s address at 2931 Garcia Street in an attempt to serve process. (Ibid.) At that time, he observed two card parked in the driveway. (Ibid.)

While approaching the front door, Nava saw a Caucasian male, approximately 160 to 190 pounds and 5’ 5” to 5’ 6” in the window. (Id. ¶ 6.) He recognized that person from his previous attempt to serve process at that address on August 14, 2022. (Ibid.) Nava informed the man that he was there to deliver legal papers to Deang, but the man did not answer the door. (Ibid.) Nava left the summons, complaint, and associated documents on the front doorstep. (Ibid.)

Specifically, Nava went to the Garcia Street address on August 25, 2022 and August 26, 2022. ((Nava Decl. ¶¶ 4-5.) Both times there was a car parked in the driveway of the residence. (Id.) Each time, Nava knocked on the door and nobody answered. (Id.)

Nava also went to the Garcia Street address on August 14, 2022. At that time, Nava knocked on the door. A man answered. When Nava inquired as to whether Deang was home, the man indicated that she was not. At that time, Nava handed the man the summons and complaint and other documents associated with the Corporate Defendants. This individual indicated that his name was Andrew and Nava noted that he was a Caucasian male of a certain age and weight. (Nava Decl. ¶ 3.) This was the same individual Nava states he saw through the window on August 27, 2022.

Prior to August 14, 2022, process server Nava had been to the Garcia Address. Specifically on July 30, 2022, July 31,2022, August 1, 2022, August 3, 2022, August 4, 2022, August 8, 2022, and August 11, 2022. (Nava Non- Service Reports.) On July 31, 2022, Nava spoke to a female occupant (though the doorbell) who confirmed that Deang lived at the address, but was not home. (Nava Non-Service Report.)

After August 14, 2022, but prior to August 27, 2022, Nava went to the Garcia address on August 18, 2022, August 19, 2022, August 20, 2022, August 21, 2022 and August 22, 2022. (Nava Non Service Report.)

In arguing that Nava’s account is incorrect, Deang states that on August 27,2022 she and her only coresident were traveling abroad. Specifically, Deang contends that she and her only coresident were traveling abroad from August 26, 2022 through January 10, 2023. (Deang Decl. ¶ 7.) However, Deang provides no documentary proof of this fact.

Additionally, Deang provides video footage of her home on the date in question from a “Ring” security camera. That footage shows a man, presumed to be Nava, approach her driveway, knock on the door repeatedly, then leave the documents on the front steps without interacting with a resident.

Plaintiff contends that this footage is not dispositive, as there is a 17 second period where Nava is unseen in the security footage, as the footage remains from the vantage of the camera above the driveway while Nava approaches the door. The footage then switches to the front door camera, which shows Nava repeatedly knocking, before leaving the papers without interacting with a resident. Plaintiff contends that it is in this period that the cameras do not show that Nava sees the resident in the window, tells the resident that he has legal papers for Deang, then waits for the resident to open the door.

Deang argues that the as Proof of Service describes a John Doe as accepting service that does not resemble her or her coresident, the Court should vacate all parties’ defaults pursuant to the instant motion.

The Court does not find Deang’s assertion sufficient to overcome the presumption that service was properly effectuated on the Corporate Defendants on August 14, 2023.