Judge Salvatore Sirna, Case Number: 19PSCV00305, Date: 2023-06-20 Tentative Ruling

Judge: Salvatore Sirna, Case: 19PSCV00305, Date: 2023-06-20 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, counsel are advised to check this website periodically to determine whether any changes or updates have been made to the tentative ruling. Counsel may submit on the tentative rulings by calling the clerk in Department G at (909) 802-1104 prior to 8:30 a.m. the morning of the hearing.

Case Number: 19PSCV00305 Hearing Date: June 20, 2023 Dept: G

Defendant Jake Sellberg’s Motion to Quash Service of Summons and to Set Aside Default and Default Judgment

Respondent: Judgment Creditor L.J. Zhu

TENTATIVE RULING

Defendant Jake Sellberg’s Motion to Quash Service of Summons and to Set Aside Default and Default Judgment is DENIED.

BACKGROUND

This is a breach of contract action arising from a commercial lease agreement. On October 19, 2017, Luminesce, LLC (Luminesce) entered into a lease agreement with Defendant Jake Sellberg in which Luminesce agreed to lease property in the City of Industry to Defendant. Subsequently, Luminesce alleges Defendant breached the lease agreement by failing to make payments and damaging the property by operating an illegal marijuana dispensary.

On April 3, 2019, Luminesce filed a complaint against Defendant and Does 1-50, alleging the following causes of action: (1) breach of written contract, (2) damage and waste to real property, (3) negligence, and (4) unfair business practices. On April 16, Luminesce’s registered process server allegedly served Defendant in Huntington Beach through substitute service.

On June 25, 2019, default was entered against Defendant. On November 25, the court granted Luminesce’s application for default judgment. On December 1, 2022, Luminesce assigned the judgment to L.J. Zhu (Zhu).

On April 14, 2023, Defendant filed the present motion. A hearing on Defendant’s motion and an application for an order for appearance and examination is set for June 20.

EVIDENTIARY OBJECTIONS

Zhu’s evidentiary objections to the declaration of Jeffrey B. Sellberg are OVERRULED.

ANALYSIS

Defendant moves to quash the service of summons and set aside the entry of default pursuant to Code of Civil Procedure section 473, subdivision (d) and, alternatively, on the grounds of mistake, inadvertence, surprise, or excusable neglect pursuant to Code of Civil Procedure section 473, subdivision (b). For the following reasons, the court DENIES Defendant’s motion.

Legal Standard

Pursuant to Code of Civil Procedure section 473, subdivision (d), “The court may . . . on motion of either party after notice to the other party, set aside any void judgment or order.” “[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.) Thus, pursuant to Code of Civil Procedure 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.” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.)

Furthermore, whenever an application for relief from default is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, the court shall vacate any (1) resulting default entered by the clerk against his or her client or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. (Code Civ. Proc., §473, subd. (b).)¿ “The six-month time limit for granting statutory relief is jurisdictional and the court may not consider a motion for relief made after that period has elapsed.” (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.) That “six-month period runs from entry of default, not entry of judgment.” (Id.)

Courts liberally grant motions to vacate default judgments when relief is promptly sought and the opposing party is not prejudiced as the law strongly favors resolution on the merits. (Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13, 28.) Courts only require “slight evidence” to support vacating a default and resolve all doubts in favor of the party seeking relief. (Ibid.) However, “[t]he only occasion for the application of section 473 is where a party is unexpectedly placed in a situation to his injury without fault or negligence of his own and against which ordinary prudence could not have guarded.” (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206, quoting Elms v. Elms (1946) 72 Cal.App.2d 508, 513.)

Discussion

In this case, Defendant argues that the entry of default and default judgment against Defendant is void because Defendant was not properly served. However, when a party seeks to set aside an allegedly void judgment pursuant to Code of Civil Procedure section 473, subdivision (d) on such grounds, the motion must be brought within two years of the entry of judgment. (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180 (Trackman).) Because the Defendant here filed the present motion more than two years after the entry of default judgment on November 25, 2019, Defendant cannot set aside the judgment on the grounds that service was improper.

Instead, Defendant can only prevail in setting aside the judgment on the grounds of extrinsic fraud or mistake or on the grounds that the judgment is facially void. (Id., at p. 181.) Here, Defendant does not identify the existence of any extrinsic fraud. Extrinsic mistake occurs ‘when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits.’” (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 47, quoting Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981 (Black).) Defendant’s motion also does not clearly identify any extrinsic mistake. However, to the extent the declaration of Jeffrey B. Sellberg, Defendant’s father, suggests the service of an individual who was not a co-occupant constitutes an extrinsic mistake, the court finds the declaration is insufficient to establish circumstances that unfairly cost Defendant a chance to appear in the present action.

Defendant’s father claims to be the owner the Huntington Beach property where the substitute service in this action allegedly occurred. (Sellberg Decl., ¶ 2.) Defendant’s father also states Defendant has not resided at the Huntington Beach property since 2005. (Sellberg Decl., ¶ 3.) However, according to the lease application Defendant submitted in 2017 and the copy of Defendant’s California driver’s license that was provided, Defendant resided at the Huntington Beach property. (Zhu Decl., Ex. 5-6.) Defendant’s father also claims that the individual served with substitute process, Valauria Ventimiglia, was not a co-occupant of the Huntington Beach property and has never lived there. (Sellberg Decl., ¶ 5, 8.) However, even if service was completed on an individual who did not live at the Huntington Beach property, copies of the summons and Complaint were also mailed to that address. Neither Defendant nor Defendant’s father state whether they received the documents. Thus, the sole declaration from Defendant’s father is insufficient to establish the existence of any extrinsic mistake that prevented Defendant from obtaining notice of this action.

A judgment’s facial invalidity must appear “on the face of the record, including the proof of service” and cannot rely on extrinsic evidence or declarations. (Trackman, supra, 187 Cal.App.4th at p. 181.) Here, Defendant fails to point to any error that appears on the face of the judgment roll in this case. Thus, Defendant fails to establish grounds for voiding the default judgment pursuant to Code of Civil Procedure section 473, subdivision (d).

Last, to the extent Defendant seeks relief pursuant to Code of Civil Procedure section 473, subdivision (b), Defendant’s request is denied as untimely. Pursuant to this code section, “[t]he six-month time limit for granting statutory relief is jurisdictional and the court may not consider a motion for relief made after that period has elapsed.” (Black, supra, 176 Cal.App.4th at p. 42.) That “six-month period runs from entry of default, not entry of judgment.” (Id.) Here, default was entered on June 25, 2019, and Defendant’s motion far exceeds the six-month window for seeking relief.

Accordingly, Defendant’s motion is DENIED.

CONCLUSION

Based on the foregoing, Defendant’s motion to set aside the entry of default and default judgment and quash the service of summons is DENIED.