Judge: Theresa M. Traber, Case: 21STCV09122, Date: 2025-04-15 Tentative Ruling



Case Number: 21STCV09122    Hearing Date: April 15, 2025    Dept: 47

Tentative Ruling

 

Judge Theresa M. Traber, Department 47

 

 

HEARING DATE:     April 15, 2025                        JUDGMENT: August 10, 2021

                                                          

CASE:                         Westlake Services, LLC v. Skyline Auto Sales, Inc., et al.

 

CASE NO.:                 21STCV09122           

 

MOTION TO SET ASIDE DEFAULT/DEFAULT JUDGMENT; MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT

 

MOVING PARTY:               Specially Appearing Defendant Mirsad Jakupovic

 

RESPONDING PARTY(S): Plaintiff Westlake Services, LLC

 

CASE HISTORY:

·         03/09/21: Complaint filed.

·         08/10/21: Default Judgment entered.

 

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

           

            This is an action for breach of contract. Plaintiff alleges that Defendants failed to make payments pursuant to a retail installment sails contract for the purchase of a motor vehicle.  

 

Defendant Mirsad Jakupovic moves to set aside the default and default judgment as void and to quash service of the summons and complaint.

           

TENTATIVE RULING:

 

Defendant’s Motion to Set Aside Default and Default Judgment is GRANTED.

 

            Defendant’s Motion to Quash Service of Summons and Complaint is GRANTED.

 

            Defendant is not deemed to have made a general appearance.

 

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DISCUSSION:

 

Motion to Set Aside Default and Default Judgment

 

            Defendant Mirsad Jakupovic moves to set aside the default and default judgment as void for improper service of process.

 

Missing Proof of Service

 

            Defendant’s moving papers are not accompanied by a proof of service showing Plaintiff was properly served with the motion. (See Code Civ. Proc. § 1005.) Nevertheless, Plaintiff served and filed an opposition to this motion on February 18, 2025, and does not object to the motion as improperly served. The Court will therefore overlook this defect and address the motion on its merits.

 

Defective Service of Process

 

            Defendant principally moves to set aside the default and default judgment as void due to improper service of process.

 

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).) There is no time limit for a motion to set aside a void judgment for improper service. (California Capital Ins. Co. v. Hoehn (2025) 17 Cal. 5th 207, 225-26 [abrogating previous doctrine imposing a two-year deadline to bring a motion under section 473(d) for improper service].)

 

The primary method of service of process is personal service, which must be attempted before any other method. (See Code Civ. Proc. §§ 415.10, 415.20(a).) Personal service is accomplished by delivering a copy of the summons and complaint to the person to be served. (Code Civ. Proc. § 415.10.) If personal service is not possible after a reasonably diligent effort to do so, a plaintiff may serve a defendant by leaving a copy of the summons and complaint at the defendant’s office or usual mailing address with a person apparently in charge thereof above the age of 18, and thereafter mailing a copy to the same location. (Code Civ. Proc. § 415.20.)

 

According to the Proof of Service filed by Plaintiff on July 13, 2021, Plaintiff served the Summons and Complaint on Defendant Jakupovic, both personally and as agent for the corporate Defendant Skyline Auto Sales, Inc., on May 18, 2021. (Proof of Substituted Service.) Service was purportedly accomplished on that date by leaving the summons and complaint at 2214 48th Street, Astoria, NY 19001 with an individual named Terik Jakupovic, and thereafter mailing a copy to the same address. (Id.) The Proof of Service, on its face, appears to demonstrate service by substitute service.

 

Defendant Jakupovic, in bringing this motion, contends that the Astoria address is not his residence or place of business. According to Defendant, the address where the papers were presented is the residence of his son, Terik Jakupovic, and Defendant’s true residence of many years is 112 E. Broad Street, West Hazelton, PA, 18202. (Declaration of Mirsad Jakupovic ISO Mot. ¶¶ 6-7.) In support of the position that the Pennsylvania residence is his proper residence, Defendant has presented two vehicle titles identifying that address as his place of residence (Exhs. 1-2), registration documents showing the same address (Exhs. 4-5), and a Notice of Hearing from the State of New York regarding a traffic violation also addressed to the same location. (Exh. 3.)

 

In opposition, Plaintiff argues that service on the New York address was proper. Plaintiff states that its investigation identified multiple properties associated with Defendant, including both the Pennsylvania and New York addresses, and a LexisNexis records search indicated that the New York address was the most current address. (See Plaintiff’s Exh. 1.) Plaintiff asserts that Defendant was first properly served via mail on March 31, 2021. As service by mail was not the method of service on which the default and default judgment was predicated, this argument is not relevant. Moreover, even assuming mail service was properly at issue, Plaintiff’s sole evidence the New York address was correct at the time of service is a Domestic Return Receipt signed only with the last name “Jakupovic.” (Plaintiff’s Exh. 2.) Contrary to Plaintiff’s assertion, a return receipt, standing on its own, is not sufficient evidence of proper mail service. (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1437.)

 

Next, Plaintiff baldly asserts, without explanation, that service was proper because the New York address was Defendant’s “usual mailing address.” Plaintiff offers no evidence of this conclusion beyond a document from the United States Postal Service which reports that Defendant receives mail at that address. (Plaintiff’s Exh. 6.) The mere fact that Defendant receives mail at a particular address does not establish that the address is Defendant’s “usual mailing address.” Moreover, none of Plaintiff’s laundry list of authorities establish that service is properly made by leaving the summons and complaint at a separate mailing address with a relative of the party, where the party denies that the address in question is his residence or business. (See, e.g., Ludka v. Memory Magnetics International (1972) 25 Cal.App.3d 316, 320-21 [service on corporation properly made by leaving summons and complaint with receptionist elsewhere in building]; Khourie Crew & Jaeger v. Sabek, Inc. (1990) 220 Cal.App.3d 1009, 1015 [service by leaving outside of door of residence in presence of defendant is proper].)

 

Plaintiff also attempts to attack Defendant’s evidentiary showing by dismissing Defendant’s declaration as “self-serving” and “vague.” This characterization is not persuasive, as Defendant’s motion, rather than merely regurgitating vague conclusions of law, contains concrete factual averments supported by substantial documentary evidence. Nor is the Court moved by Plaintiff’s contention that Defendant had actual knowledge of this action, as “actual knowledge” is not at issue on a challenge to service of process. (Compare Code Civ. Proc. §§ 437(d); 473.5.) Were actual knowledge sufficient to defeat a challenge to service of process, many of the statutory provisions governing motions to quash service of the summons and complaint would be meaningless. (See Code Civ. Proc. § 418.10 et seq.) The Court rejects such a strained position.

 

Next, Plaintiff argues that even if the New York address is improper, Plaintiff’s service was substantially compliant with the Code of Civil Procedure. It is true, as Plaintiff argues, that only substantial compliance, and not strict compliance, is required for service of process. (Gibble v. Car-Lene Research Inc. (1998) 57 Cal.App.4th 295, 313.) However, the principal authority on which Plaintiff relies addresses whether service on a corporate party was proper when made on an agent with apparent but not actual authority to accept service. (See Id.) Nothing in that case stands for the position that service is substantially compliant when made at an incorrect address.

 

Plaintiff further argues that, notwithstanding any deficiency in service, the default and default judgment should stand because Defendant did not exercise reasonable diligence in bringing this motion. This contention is not relevant, as there is no requirement for diligence in a challenge to a void judgment. Although Plaintiff tries to offer various authorities to the contrary, none of the cases cited pertain to a motion to set aside a void judgment. (Kendall v. Allied Investigations Inc. (1988) 197 Cal.App.3d 619, 624-25 [motion to set aside for mistake, inadvertence, or excusable neglect under subdivision (b)]; Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13, 37 [motion under inherent authority to set aside for mistake, inadvertence, or neglect].)

 

Finally, Plaintiff contends that if the default and default judgment are set aside, it will be unfairly prejudiced. Prejudice is not relevant where the judgment is void. (Sidler v. Brennan (2003) 105 Cal.App.4th 1350, 1354 [prejudice not a basis to deny motion to set aside void dismissal].)  

 

On this record and based on the sworn statements by Defendant under penalty of perjury, the Court finds that Defendant’s usual mailing address and residence is 112 E. Broad Street, West Hazelton, PA, 18202. Because substituted service was not made at that address, Plaintiff failed to establish personal jurisdiction over Defendant, such that the default and default judgment are void.

 

Conclusion

 

            Accordingly, Defendant’s Motion to Set Aside Default and Default Judgment is GRANTED.

 

Motion to Quash Service of Summons and Complaint

 

            Defendant moves to quash service of the summons and complaint on the same basis as the motion to set aside the default. As the Court has concluded that service was not properly made on Defendant’s residence and usual mailing address, Defendant’s Motion to Quash must also be GRANTED.

 

CONCLUSION:

 

            Accordingly, Defendant’s Motion to Set Aside Default and Default Judgment is GRANTED.

 

            Defendant’s Motion to Quash Service of Summons and Complaint is GRANTED.

 

            Defendant is not deemed to have made a general appearance.

 

            Moving Party to give notice.

 

IT IS SO ORDERED.

 

Dated:  April 15, 2025                                    ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

 


            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

 



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