Judge Ronald F. Frank, Case 22IWUD00828 2022-10-25 Tentative Ruling

Judge: Ronald F. Frank, Case: 22IWUD00828, Date: 2022-10-25 Tentative Ruling

Case Number: 22IWUD00828 Hearing Date: October 25, 2022 Dept: 8

HEARING DATE: Mon., October 25, 2022 JUDGE /DEPT: Frank/8

CASE NAME: 2020 Artesia LLC v. Miranda Emerson, et al.

CASE NUMBER: 22IWUD00828 COMPL. FILED: 08/08/22

PROCEEDINGS: MOTION TO SET ASIDE JUDGMENT

MOVING PARTY: Defendant, Miranda Emerson

RESP. PARTY: None

MOTION TO SET ASIDE THE JUDGMENT AND ANY DEFAULT, AND TO QUASH ANY WRIT OF POSSESSION.EXECUTION.

(CCP §§ 473, 473.5)

TENTATIVE RULING:

Defendants Motion to Set Aside/Vacate Judgment is GRANTED. Defendant’s proposed Answer is deemed filed and served as of October 25, 2022.

If both parties are present, the Court also will conduct a Trial Setting Conference.

OPPOSITION: None filed as of October 24, 2022 [ ] Late [X] None

REPLY: None filed as of October 24, 2022 [ ] Late [X] None

ANALYSIS:

Background

This is a case involving an unlawful detainer arising from Defendant Miranda Emerson’s (“Defendant”) alleged failure to pay rent due. On June 9, 2022, 2020 Artesia, LLC (“Plaintiff”), filed the instant action against Defendant. On June 10, 2022, a Notice of Unlawful Detainer was served by the Deputy Clerk to Defendant by mail. On June 24, 2022, June 25, 2022, and June 27, 2022, Plaintiff attempted to serve Defendant. Finally, on June 28, 2022, Defendants were purportedly served with copies of the summons and complaint via substituted service.

On August 26, 2022, Plaintiff filed an Application for Writ of Possession. The Court issued a Writ of Possession of Real Property to Plaintiff the same day.

On October 13, 2022, Defendant filed an Ex Parte Application for Order Staying Execution of the Judgment until a hearing on Defendant’s Motion to Set Aside Judgment (Default and Writ Also, If Any) and an Order Shortening Time for Hearing and Service of the Motion to Set Aside. Also on October 13, 2022, the Court entered a Minute Order continuing the Hearing on Motion to Set Aside/Vacate Default and Default Judgment to October 25, 2022 and held that the execution of the Writ of possession be stayed until October 25, 2022.

Legal Standard

Courts may set aside a default or default judgment due to lack of actual notice. Code of Civil Procedure § 473.5 states:

“(a) 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.

(b) A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.

(c) Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.”

Additionally, “[a] summons is the process by which a court acquires personal jurisdiction over a defendant in a civil action. The form of a summons is prescribed by law, and this form must be substantially observed. [Citation.] Service of a substantially defective summons does not confer jurisdiction over a party [citation] and will not support a default judgment. [Citation.]” (MJS Enterprises, Inc. v. Superior Court (1984) 153¿Cal.App.3d 555, 557.) “Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.’ [Citation.]” (Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 858.) The trial court may set aside any void judgment or order at any time. (Code Civ. Proc., § 473(d).)

Discussion

Code of Civil Procedure section 473.5¿provides relief from default if service of summons “has¿not resulted in actual notice to a party in time to defend the action¿. . .¿.”¿(Code Civ. Proc., § 473.5,¿subd. (a).)¿Actual notice has been held to “mean genuine knowledge of the party litigant.” (Rosenthal v. Garner (1983) 142 Cal.App.3d 891, 895.) A motion to set aside default under¿section 473.5¿must be accompanied by “a copy of the answer, motion, or other pleading proposed to be filed in the action.” (Code Civ. Proc., § 473.5,¿subd. (c).)¿“A party seeking relief under section 473.5 must provide an affidavit showing under oath that his or her lack of actual notice in time to defend was not caused by inexcusable neglect or avoidance of service.” (Anastos v. Lee (2004) 118 Cal.App.4th 1314, 1319.)

Here, Defendant has filed a copy of a proposed Answer, and his declaration noted that he received a 3-day notice left on his door in April 2022. He noted that he tried to negotiate the late rent payments with the property manager a couple of times but was denied to make any rent payments. Defendant stated that he found a notice to vacate left at her door in October of 2022, but did not receive a Summons or the Complaint, so he did not know an eviction suit had been filed or had proceeded to a clerk’s default. Plaintiff’s proof of service of summons notes that service was left with a woman in her 70s, 5’6, and 150 pounds. Defendant’s declaration claims that no one with that description was living or staying with him. Thus, Defendant’s declaration showing that his lack of actual notice in time to defend was not caused by inexcusable neglect or avoidance of service. Plaintiff has not field any opposition such as a declaration of the process server or provided the Court with any video or photographic evidence to refute Defendant’s declaration.

“[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.] Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.) “Under 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.” (Ibid.)

In any event, “[w]hen a defendant argues that service of summons did not bring him or her within the trial court’s jurisdiction, the plaintiff has ‘the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.’” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 387.) Here, the proof of service filed on June 28, 2022, creates a rebuttable presumption that service was proper. (Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1163.) Defendant’s declaration rebuts the proof of substituted service.

Based on the foregoing, the Court GRANTS Defendant’s Motion.

Conclusion¿¿

Defendant’s Motion to Set Aside Dismissal under Code of Civil Procedure § 473.5 is GRANTED. The proposed Answer is deemed filed and served as of October 25, 2022.