Judge Sarah J. Heidel, Case Number: 24NNCV01451, Date: 2025-02-11 Tentative Ruling

Judge: Sarah J. Heidel, Case: 24NNCV01451, Date: 2025-02-11 Tentative Ruling

Case Number: 24NNCV01451 Hearing Date: February 11, 2025 Dept: V

CHRISTOPHER MYERS, Plaintiff, vs. JOHN E. PARKER and TITA G. PARK.ER, as Trustees of the Parker Family Trust, and DOES I through 20, inclusive, Defendants.

Case No.: 24NNCV01451 Hearing Date: February 11, 2025 Time: 8:30 a.m.

[TENTATIVE] ORDER RE: MOTION TO VACATE AND SET ASIDE DEFAULT AND MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT

MOVING PARTIES: Defendants JOHN E. PARKER and TITA G. PARKER

RESPONDING PARTY: Unopposed

The court considered the moving papers.

BACKGROUND

Plaintiff Christopher Meyers filed the complaint against defendants John E. Parker and Tita G. Parker, as Trustees of the Parker Family Trust, on May 8, 2024. Plaintiff alleges the following causes of action: (1) negligence; (2) breach of implied warranty of habitability; (3) private nuisance; and (4) breach of implied covenant of peaceful and quiet enjoyment.

Plaintiff served defendants on May 29, 2024, by substitute service by leaving the summons and complaint with Melody Parker, occupant. Default was entered against defendants on August 13, 2024.

Defendants filed the instant motion on November 15, 2024. No opposition has been received.

LEGAL STANDARD

Setting Aside/Vacating Default Judgment

“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473(b).) Application for this relief shall be made within a reasonable time, in no case exceeding six months, after judgment, dismissal, order, or proceeding was taken. (Code Civ. Proc., § 473(b).) “The 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).)

Quashing Service of Summons

“A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion . . . [t]o quash service of summons on the ground of lack of jurisdiction of the court over him or her. (Code Civ. Proc., § 418.10(a)(1).) “[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.]” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) “[T]he filing of a proof of service creates a rebuttable presumption that the service was proper” but only if it “complies with the statutory requirements regarding such proofs.” (Id. at 1441-1442.) When a defendant moves to quash service of the summons and complaint, the plaintiff has “the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.” (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868.) “A court lacks jurisdiction over a party if there has not been proper service of process.” (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.)

DISCUSSION

A. Motion to Set Aside Default Judgment

Defendants move to vacate and set aside the entry of default on the grounds that defendants were never properly served with the summons and complaint.

“‘A judgment or order is said to be void on its face when the invalidity is apparent upon an inspection of the judgment-roll.’ (Ibid.) In a case in which the defendant does not answer the complaint, the judgment roll includes the proof of service. (§ 670, subd. (a).)” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441, as modified on denial of reh'g (May 26, 1994).) “California courts have held that ‘compliance with the statutory procedures for service of process is essential to establish personal jurisdiction .... Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.’” (California Capital Insurance Company v. Hoehn (2024) 17 Cal.5th 207 citing Dill, supra, 24 Cal.App.4th at 1444.) In Dill, the court held that when the basis of defendant’s motion to set aside an order or default judgment is that plaintiff failed to effect valid service, the evidentiary burden is on plaintiff to establish that defendant has been validly served. (Dill, supra, 24 Cal.App.4th at 1441.)

According to defendants, Melody Parker, the person to whom the summons and complaint were purportedly served, neither received the summons and complaint, nor was at the service address at the time service occurred. Defendants offer Ms. Parker’s declaration which states that: (1) she was not at the service address on the date or time of the purported substituted service on defendants; (2) she had no contact with a process server and no documents were handed to her; (3) she does not reside at the service address and resides in San Jose; and (4) she has not resided at the service address since 2001. (M. Parker Decl. ¶¶ 4-6.) Parker states that on May 29, 2024, and May 30, 2024, she was at her workplace in Cupertino for Apple Inc., and the Apple Global Security record indicates that her badge was swiped to access secure doors at her workplace in Cupertino throughout the day on May 29, 2024, and May 30, 2024. (M. Parker Decl., ¶ 7; Exh. E.) Parker was leading a large annual event for her work and was highly visible to other employees at her work on those days and she did not and could not have traveled to the

location of the service address on May 29, 2024. (M. Parker Decl., ¶ 7.) Additionally, Parker notes that the description of her of the proofs of service is inconsistent with her race and other characteristics (M. Parker Decl., ¶ 9.)

Plaintiff, who filed not opposition, bears the burden of showing effective service and has failed to do so. The court accordingly sets aside the default under California Code of Civil Procedure 473.4 and Section 473(d).

B. Motion to Quash Service of Summons

Defendants also move to quash the summons and complaint on the grounds that defendants were never properly served with the summons and complaint.

As discussed above, since the court finds that it lacked personal jurisdiction over defendants, the court grants the motion to quash service of summons and complaint pursuant to Code of Civil Procedure section 418.10(a)(1).

C. Filing Fees

Defendants filed one motion for what is two motions: motion to set aside default and motion to quash service of summons. Combining the motions allows the moving party to avoid paying the requisite filing fees. Filing fees are not jurisdictional and it is mandatory for court clerks to demand and receive them. (See Duran v. St. Luke’s Hospital (2003) 114 Cal.App.4th 457, 460.) Defendants are ordered to pay an additional filing fee.

Based on the foregoing, the court GRANTS the motion to set aside default and the motion to quash service of summons.

The court orders defendants to pay an additional filing fee.

Defendants are ordered to give notice of this ruling.