Judge: Theodore R. Howard, Case: 21-1228300, Date: 2023-06-15 Tentative Ruling
Before the Court are two motions, both of which were filed as a single pleading. The first motion is to vacate the default judgment and default entered against Wai Yuk Tang Lok and in favor of Liang Rex. This motion is GRANTED. In the second motion, Wai Yuk Tang Lok seeks to quash service of the summons and complaint. This second motion is GRANTED.
MOTION TO VACATE JUDGMENT AND DEFAULT
Code of Civil Procedure §473(d), provides, “The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”
“Where a party moves under section 473, subdivision (d) to set aside “a judgment that, though valid on its face, is void for lack of proper service, the courts have adopted by analogy the statutory period for relief from a default judgment” provided by section 473.5, that is, the two-year outer limit.” (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 181; accord, Rutter CPBT 5:491)
On 6/6/22 the default of Wai Yuk Tang Lok (“Lok”) was entered. (ROA 22) On 8/10/22, a default judgment was entered against Lok and in favor of Liang Rex (“Rex”). (ROA 44) Both the default and judgment were based upon service of the summons as set forth in the Proof of Substitute Service (“POS”) filed 6/6/22 showing substitute service on 12/17/21. (ROA 20)
CCP §415.20(b) sets forth the requirements for substitute services as follows:
If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, 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, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, 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, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.
Ellard v. Conway (2001) 94 Cal.App.4th 540, 544, explains, “‘[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. [Citation.]’ [Citation.]’ 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. [Citations.]” “When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.’ ” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413; Footnote 35 omitted.)
The filing of a proof of service that shows on its face compliance with the statutory requirements creates a rebuttable presumption of proper service. (Evid.Code, § 647; Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795, 69 Cal.Rptr.2d 457. Here, the POS filed 6/3/22 signed by Manuel Gil Lica on 12/20/21 states at ¶5 that on 12/17/21 at 12:20 pm “I left the documents listed in item 2 with or in the presence of (name and title or relationship to person indicated in item 3): Ernie Kwan; male, Asian, 40-45 years of age, 5’6”, 140 lbs, black hair. … a competent member of the household (at least 18 years of age) at the dwelling house or usual place of abode of the party. I informed him or her of the general nature of the papers.” (ROA 20)
To rebut the presumption of proper service, Lok submits evidence showing she moved away from the Irvine house in 2016 and did not live there when Rex allegedly sub-served her. (Lok Decl. ¶10) She also submits additional evidence showing she did not live at the Irvine house and instead lived at the Newport house since 2016. (See Decls. of E. Kwan, E. Chong, and K. Chong.)
Lok also submits credible evidence that Ernest Kwan was not present at the time of substitute service. (Kwan Decl. ¶6) Rex responds by submitting the declaration of the process server, Manuel Lica, who states that on 12/17/21 when he went to the house he never actually saw or spoke with anyone. Instead, he states that he saw security cameras at the property which meant to him that the people inside were watching him and that they “knew my purpose was to serve Wai Yuk Tang Lok.” (Lica Decl. at ¶6) He states that he could hear people talking inside and a dog barking. When nobody answered the door, he “shouted through the door that I was leaving legal papers for Wai Yuk Tang Lok and they had to be answered in 30 days.” (Lica decl. at ¶8)
Based on the evidence submitted, the POS was not accurate. The declaration of Ernest Kwan shows he was not there and therefore the POS is not accurate when it states that the documents were left with “Ernie Kwan.” The POS is also not accurate when it states that the documents were left with a “competent member of the household” because the process server admits he did not know who was behind the door and was therefore unable to determine if the persons were members of the household. The POS was also not accurate because Lok has established that the Irvine house was not her “dwelling house or usual place of abode.” Also, the POS is also not accurate when it states that Mr. Lica determined that the person with whom the documents were left was “at least 18 years of age” because he admits he never saw the people behind the closed door and had no way of determining the age of the people.
Rex also argues that Lok must have received notice because he sent the documents to the Irvine house and Lok’s daughter would have given her the documents. However, Lok submits evidence that she did not receive actual notice of the action. First, Lok states that she never received the summons or complaint at the Irvine address. (Lok Decl. ¶3) Second, Kwan states that he never received the summons and complaint in the mail. (Kwan Decl. at ¶6) In either event, actual notice without compliance with the statutory requirements for service makes no difference. (Slaughter v. Legal Process & Courier Serv. (1984) 162 Cal. App. 3d 1236, 1251 – “a court does not acquire jurisdiction where personal service is relied upon but has not in fact taken place.”)
Rex further argues that the motion should be denied because Lok intentionally concealed herself from service. The Court does not find that the facts or authority cited by Rex support the conclusion that the requirements of CCP §415.20 should be disregarded.
The Motion to Vacate is therefore GRANTED and the default judgment entered on 8/10/22 (ROA 44), as well as the default entered on 6/6/22 (ROA 22), are VACATED.
MOTION TO QUASH SERVICE OF SUMMONS
CCP §418.10 sets forth the timing requirement for a MTQ: “(a) 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 for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.”
Pursuant to CCP §418.10(a)(1), a defendant may move to quash service of summons on the ground of lack of jurisdiction of the court over him or her. Section 418.10(d) expressly authorizes a defendant to join a motion to quash for lack of jurisdiction with a motion under section 473 or 473.5 to set aside a default or default judgment without those requests for relief constituting a general appearance: “[N]o motion under this section, or under Section 473 or 473.5 when joined with a motion under this section ... shall be deemed a general appearance by the defendant.” (§418.10(d); see also Judicial Council comment. foll. § 418.10 - “Defendant is permitted to join with such motion a motion under Section 473 or 473.5 of the Code of Civil Procedure to set aside a default or default judgment. (Subdivision (b); 43 Cal.L.Rev. 695, 699.) Neither of these motions, when made with a motion under this section, is deemed a general appearance by the defendant.” ; see also Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1246, 1251 [finding no general appearance by defendants who filed motion to quash service of summons, to vacate defaults and to dismiss for lack of personal jurisdiction and inconvenient forum].)
“[C]ompliance with the statutes governing service of process is essential to establish that court's personal jurisdiction over a defendant.” (Dill v. Berquist Constr. Co. (1994) 24 Cal. App. 4th 1426, 1439) “Without valid service of summons, the court never acquires jurisdiction over defendant. Hence, the statutory ground for the motion to quash is that the court lacks jurisdiction over the defendant.” (Rutter CPBT at 4:413)
Here, as discussed above in connection with the Motion To Vacate, the service of process did not comply with the statute for substituted service. Accordingly, the Court lacks jurisdiction over the defendant.
As a result, of the failure to properly effect service of process and the Court’s lack of jurisdiction over Lok, the Motion to Quash is GRANTED.
Notwithstanding the foregoing, counsel for Lok has stated in the record that “Defendant remains willing to accept service should the default be lifted and the Motion to Quash be granted.” (Reply at 11:19-20) It is therefore expected that the parties will resolve service of the summons and complaint informally without the need for further law and motion.
Counsel for moving party is ordered to give notice of this ruling.