Judge Timothy B. Taylor, Case 37-2022-00051758-CU-UD-CTL 2023-10-13 Tentative Ruling

Judge: Timothy B. Taylor, Case: 37-2022-00051758-CU-UD-CTL, Date: 2023-10-13 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 14, 2023

09/15/2023 01:30:00 PM C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Timothy Taylor

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Civil - Unlimited Unlawful Detainer - Residential Motion Hearing (Civil) 37-2022-00051758-CU-UD-CTL WILLIAMS VS ZERMEND [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Vacate, 08/08/2023

Tentative Ruling on Defendant's Motion to Set Aside Default Judgment Williams v. Zermend, Case No 2022-51758 Sept. 15, 2023, 1:30 p.m., Dept. 72 1. Overview and Procedural Posture.

This is a residential UD case involving a house on Harrison Ave. in San Diego. The Judicial Council form complaint filed in late 2022 alleged that the two tenants stopped paying rent on October 1, 2022.

After receiving leave to serve via posting and mail (ROA 10), plaintiff did so and filed proof of service.

ROA 12-14. Neither tenant filed a responsive pleading, so both were defaulted. ROA 20-21. A default judgment for possession was thereafter entered. ROA 22.

Plaintiff recently applied for a money judgment. ROA 26-29.

Presently, one of the tenants, Ruiz, seeks to set aside the judgment pursuant to Code of Civil Procedure section 473(d).* ROA 33. There is no opposition.

2. Applicable Standards.

A. '[F]ormal service of process involves two aspects: service as a method of obtaining personal jurisdiction over a defendant and formalized notification of court proceedings to allow a party to appear and defend against the action.' Rockefeller Technology Investments (Asia) VII v. Changzhou SinoType Technology Co., Ltd. (2020) 9 Cal.5th 125, 143. A method of service is constitutionally valid only if it provides 'notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action.' Mullane v. Central Hanover Bank & Trust Co. (1950) 399 U.S. 306, 314.

B. A plaintiff in an unlawful detainer action may serve the summons and complaint by posting and mailing – known colloquially as 'nail and mail' service: 'A summons in an action for unlawful detainer of real property may be served by posting if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot Calendar No.: Event ID: TENTATIVE RULINGS

3000625 51 CASE NUMBER: CASE TITLE: WILLIAMS VS ZERMEND [IMAGED] 37-2022-00051758-CU-UD-CTL with reasonable diligence be served in any manner specified in this article other than publication[.]' Code Civ. Proc. § 415.45(a).

C. A party who has not been properly served with a summons has three avenues of relief from a default judgment. Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180.

First, the party may bring a motion under Code of Civil Procedure section 473.5(a), which applies '[w]hen service of a summons has not resulted in actual notice to a party in time to defend the action.' Such a motion must be brought within a 'reasonable time' not to exceed the earliest of either two years after entry of the default judgment or 180 days after service of written notice that the default or default judgment has been entered. Code Civ. Proc. § 473.5(a).

Code of Civil Procedure section 473(d) provides a second avenue for relief from a default judgment based on improper service. That statute allows the court to 'set aside any void judgment or order.' There is no time limit for bringing an action under subdivision (d) if the judgment can be shown to be invalid on the face of the record. Trackman, 187 Cal.App.4th at 181. However, where a party moves under section 473(d) to set aside a judgment that, although facially valid, is void for lack of proper service, the courts have applied a two-year statutory time limit for bringing such motions, by analogy to the two-year statutory time limit for motions under section 473.5. Id. at 180.

Finally, a court has the inherent authority to set aside a default judgment based on nonstatutory, equitable grounds 'if it has been established that extrinsic factors have prevented one party to the litigation from presenting his or her case.' In re Marriage of Park (1980) 27 Cal.3d 337, 342. There is no fixed time limit for seeking relief from a default judgment on equitable grounds, provided the party acts with diligence upon learning of the relevant facts.' Trackman, 187 Cal.App.4th at 181.

3. Ruling.

The unopposed motion to vacate default judgment is granted. Code Civ. Proc. § 473(d).

The court deems the lack of opposition to the motion to be a concession as to the merits of the motion.

SDSC Local Rule 2.1.19(B). Moreover, Ruiz has shown that effecting service by 'nail-and-mail' was not reasonably calculated to impart notice to her. Although posting notice of an unlawful detainer action at the leased premises is typically sufficient to impart notice to the tenant (Board of Trustees of Leland Stanford Junior University v. Ham (2013) 216 Cal.App.4th 330, 338-39), it is not inevitably sufficient.

Here, the evidence shows that plaintiff knew Ruiz had vacated the premises in December 2022. (See Ruiz Decl., ¶ 3.) Posting a notice at that abandoned location, and simultaneously mailing notices to it, were not acts reasonably calculated to apprise Ruiz of the pending lawsuit.

'[A] judgment against a party who was not properly served violates that party's procedural due process rights and the appropriate remedy is to set aside that judgment as void[.]' Ridec LLC v. Hinkle (2023) 92 Cal.App.5th 1182, 1202. Accordingly, the court hereby sets aside the void default judgment (ROA 15) and the underlying default (ROA 18) as to Ruiz. Ruiz must file and serve her answer to the complaint by September 20, 2023.

__________________________ *The motion seeks to set aside the 'taken against the defendant on June 17, 2023.' In fact, the judgment was entered April 11, 2023. ROA 15.

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