Judge: Theodore R. Howard, Case: 20-1149130, Date: 2022-08-18 Tentative Ruling

Specially appearing defendants AdBoom LLC, and Nick Kohlschreiber’s (“Kohlschreiber” individually; “Defendants” together with AdBoom for sole purpose of this ruling) Motion to Set Aside Default Judgment and Quash Service of Summons (“Motion”) is GRANTED.


Defendants bring this request pursuant to Civ. Proc. Code §§ 473(d) and/or 473.5.  Contrary to Plaintiff’s assertion, the six month time limit to bring a motion to set aside under Civ. Proc. Code § 473(b) is not applicable to a motion, like the present one, that is brought under Civ. Proc. Code § 473(d) as a void judgment can be attacked at any time.  (Westport Oil Co. v. Garrison (1971) 19 Cal. App. 3d 974, 978; Falahati v. Kondo (2005) 127 Cal. App. 4th 823, 830; Yeung v. Soos (2004) 119 Cal. App. 4th 576, 582 (“Yeung”).)  Although there is a time limit under Civ. Proc. Code § 473.5, that code section does not apply here as the default judgment was void on its face, so the court may proceed solely with its analysis under Civ. Proc. Code § 473(d).  (Vaughn v. Pine Creek Tungsten Co. (1928) 89 Cal. App. 759, 762.) 


“[U]nder subdivision (d) of Code of Civil Procedure section 473, the court may set aside orders and judgments that are “ ‘void,’ ” including orders and judgments void for want of fundamental jurisdiction or personal jurisdiction.”  (Bae v. T.D. Serv. Co. of Arizona (2016) 245 Cal. App. 4th 89, 97 (“Bae”); Yeung, supra, 119 Cal. App. 4th at 582.)  “Apart from any statute, courts have the inherent authority to vacate a default and default judgment on equitable grounds such as extrinsic fraud or extrinsic mistake. [Citations.] “Extrinsic fraud usually arises when a party is denied a fair adversary hearing because he has been ‘deliberately kept in ignorance of the action or proceeding, or in some other way fraudulently prevented from presenting his claim or defense.’ ” [Citations.]  In contrast, the term “extrinsic mistake” is “broadly applied when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits. [Citations.] ‘Extrinsic mistake is found when [among other things] ... a mistake led a court to do what it never intended....’ ” ‘ “  (Bae, supra, 245 Cal. App. 4th at 97-98.)


Kohlschreiber contends he was neither a resident at Fernleaf, nor did he receive mail at 721 Fernleaf Ave. in Corona Del Mar (“Fernleaf”) when the Complaint was alleged served on 08/09/20.  (Kohlschreiber Decl. ¶ 9.)  Plaintiff’s process server contends that he recalls being given a picture of Kohlschreiber prior to serving the Complaint and that “Meyers” was actually Kohlschreiber using a false name.  (Essah Decl. ¶¶ 2.)  This is a case of “Plaintiff said/Defendants said,” but in weighing the evidence, the scale leans towards Defendants.


Substitute service of a summons and complaint is permitted in lieu of personal service as long as it is at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address.  (Civ. Proc. Code § 415.20(b).)  However, there is no evidence Fernleaf qualified as any of those locations for Kohlschreiber.  There is also no evidence suggesting Fernleaf was AdBoom’s place of business or that Kohlschreiber, as agent for service of process, would have any other reason for being at Fernleaf.  (Civ. Proc. Code § 415.10(a)-(b).)  First, there is no indication as to why Plaintiff attempted to serve Defendants at Fernleaf.  Plaintiff produced no evidence supporting Fernleaf is in anyway connected to Defendants, nor does the contract between the parties have Fernleaf as an address.  (Complaint, Ex. 1.) Second, Kohlschreiber and Brown produced a copy of a residential lease signed and started well prior to the alleged 08/10/20 date of service showing the two both had sole use residential property located at 316 Iris Avenue in Corona Del Mar ("Iris”) between 10/01/19 through 09/30/21.  Third, Kohlschreiber produced the first page of copies of his telephone bill from Verizon indicating his bill for three different phone numbers was being sent to Iris both before and after the date of the supposed service (from 07/26/20 through 09/25/20).  Fourth, despite the process server stating “Meyers” was actually  Kohlschreiber giving a false name, nothing in the process server’s declaration from either of the 09/15/20 or 09/28/20 proofs of service of summons states that, nor does it give a physical description of “Meyers.”


Plaintiff argues process statutes are, “to be liberally construed to effectuate service and uphold jurisdiction if actual notice has been received by the defendant, “ ' ”and in the last analysis the question of service should be resolved by considering each situation from a practical standpoint. ...“ ' ” (Bein v. Brechtel-Jochim Grp. (1992) Inc., 6 Cal. App. 4th 1387, 1392.)  However, as noted above, there is no evidence Defendants received actual notice on this proceeding.  As such, the court cannot construe service in this instance when evidence support otherwise.


As there is no evidence service was proper at the Fernleaf location, service of the Complaint on “Meyers” did not give this court personal jurisdiction over Defendants.  The default judgment entered against Defendants is therefore void on its face as a matter of law and must be set aside.  (Civ. Proc. Code § 473(d).)  The court may also set aside the default on the basis that it was obtained either through extrinsic fraud or mistake.  (Bae, supra, 245 Cal. App. 4th at 97-98.)


Plaintiff requests if the Motion is granted, that monetary sanctions in the amount of $1,000 be awarded in favor of Plaintiff pursuant to Civ. Proc. Code § 473(c)(1)(A).  There is no basis for this request as the judgment was void and this court had no jurisdiction over Defendants.  The request for monetary sanctions is DENIED


Defendants also move the court to quash service of summons pursuant to Civ. Proc. Code § 418.10(a)(1).  Since it appears Defendants were not properly served the Summons and Complaint, they were under no duty to act upon the defectively served summons as this court did not acquire jurisdiction over Defendants.  (Kappel v. Bartlett (1988) 200 Cal. App. 3d 1457, 1466.)  A party filing a motion to set aside a default judgment that is void for lack of personal jurisdiction may also file a motion to quash summons at the same time.  (MJS Enterprises, Inc. v. Superior Ct. (1984) 153 Cal. App. 3d 555, 558.)  “A party cannot be properly joined unless served with the summons and complaint; notice does not substitute for proper service. Until statutory requirements are satisfied, the court lacks jurisdiction over a defendant.”  (Ruttenberg v. Ruttenberg (1997) 53 Cal. App. 4th 801, 808.)


The court grants Defendants’ Motion and 1) sets aside the default judgment; and 2) orders the service of summons and complaint as quashed.


Specially appearing Defendants to give notice.