Judge: Upinder S. Kalra, Case: 23STCV07307, Date: 2023-11-02 Tentative Ruling

Case Number: 23STCV07307    Hearing Date: November 2, 2023    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   November 2, 2023                                         

CASE NAME:           Saul Marroquin v. Jorge Luis Ravelo

CASE NO.:                23STCV07307

MOTION TO QUASH SERVICE OF SUMMONS OR, IN THE ALTERNATIVE, SET ASIDE DEFAULT

MOVING PARTY:  Defendant Jorge Luis Ravela (specially appearing pursuant to CCP § 418.10(d))

RESPONDING PARTY(S): Plaintiff Saul Marroquin

REQUESTED RELIEF:

1.       An Order quashing service of the summons and complaint or, in the alternative, an order setting aside the default entered on DATE.

TENTATIVE RULING:

1.      Motion to Quash Service of Summons and Complaint is DENIED;

2.      Motion to Set Aside Default is GRANTED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On April 3, 2023, Plaintiff Saul Marroquin (Plaintiff) filed a Complaint against Defendant Jorge Luis Ravelo requesting a temporary restraining order, a preliminary injunction, and a permanent injunction.

According to the Complaint, Plaintiff purchased real property known as Vacant Land Assessor’s Parcel No. 3049-029-019, Unincorporated Land (Little Rock area), CA (the Property). Plaintiff claims that Defendant was the former owner of the Property and sold it to Gary L. Gormont on November 13, 2019.  Plaintiff alleges that Gormont then sold Plaintiff the Property in December 2019. Plaintiff alleges that Defendant accepted Plaintiff’s payments as called for by the promissory note on the Property, that Defendant continued to accept payments until April 2022, and after refusing to accept payments recorded a Notice of Default and Election to Sell Under Deed of Trust on November 28, 2022.  Plaintiff alleges that Defendant seeks to foreclose on the Property despite Gormont’s family initiating probate proceedings to obtain an order confirming title in Plaintiff’s name.

On May 8, 2023, Defendant was served via substituted service. Plaintiff filed a proof of service of summons on May 15, 2023.

On July 25, 2023, Plaintiff filed a request for entry of default, which was entered that day.

On September 12, 2023, Defendant filed the instant motion. On October 20, 2023, Plaintiff filed a notice of non-opposition to motion to set aside default. On October 26, 2023, Defendant filed a reply.

LEGAL STANDARD:

“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: To quash service of summons on the ground of lack of jurisdiction of the court over him or her.”  (Code Civ. Proc., (CCP) § 418.10, subd. (a)(1).)  A defendant has 30 days after the service of the summons to file a responsive pleading, plus an additional 10 days if substitute served.  (CCP § 412.20, subd. (a)(3); CCP § 415.20, subd. (b).)   

“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.)  

ANALYSIS:

CCP § 415.20

Defendant denies that service was effectuated against him in accordance with CCP § 415.20. Plaintiff did not address this in his non-opposition. Instead, Plaintiff notes that the motion to quash is moot in light of his agreement to set aside default.

“An individual may be served by substitute service only after a good faith effort at personal service has first been made: the burden is on the plaintiff to show that the summons and complaint ‘cannot with reasonable diligence be personally delivered’ to defendants. [Citations.] Two or three attempts to personally serve a defendant at a proper place ordinarily qualifies as ‘reasonable diligence.’” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389.) If the summons and complaint cannot be personally delivered with reasonable diligence, then a copy may be served 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…who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and 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 10^th day after mailing.” (CCP § 415.20, subd. (b).) 

Here, the court disagrees with Defendant that service was improper. First, the proof of service complies with the code because it contains a declaration of diligence indicating five attempts at personal service before service on May 8, 2023. (Proof of Service.)  Defendant only challenges the person identified as receiving process on May 8, 2023, however, this argument ignores that the CCP allows the substituted service at the “usual mailing address . . . in the presence of . . . a person apparently in charge.” (CCP § 415.20(b).) Additionally, “Evidence Code section 647 provides that a registered process server’s declaration of service establishes a presumption affecting the burden of producing evidence of the facts stated in the declaration.  [Citation.]”  (American Express Centurion Bank v. Zara (2011) 199¿Cal.App.4th 383, 390; Evid. Code § 647.)  Defendant admits that the service address is his mailing address and has been for the past 30 years. (Decl. of Ravelo, ¶ 2.) Indeed, Defendant admits to have received the summons and complaint in the mail at this address and sent these documents to his prior attorney. (Id. at ¶ 5.)

Therefore, service of the summons and complaint by substituted service was valid.

Accordingly, the court DENIES Defendant’s motion to quash service of summons and complaint.

CCP § 473(b)

Defendant argues that the court should set aside the default entered against him because he honestly believed his prior attorney would take action and defend him in this lawsuit. Plaintiff does not oppose setting aside the default and asks the court to order Defendant to file a responsive pleading within 14 days of an order setting aside the default.

Pursuant to Code of Civil Procedure §473(b), both discretionary and mandatory relief is available to parties from a judgment, dismissal, order, or other proceeding.  Discretionary relief is available under the statute as “the court may, upon any terms as may be just, relieve a party or his or her legal representative from judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.  (CCP §¿473(b).)  Alternatively, mandatory relief is available when “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.”  (Ibid.)  Under this statute, an application for discretionary or mandatory relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought.  (Code Civ. Proc., § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) 

“‘[W]hen relief under section 473¿is¿available, there is a strong¿public¿policy¿in¿favor¿of granting relief and allowing the requesting party his or her day in court…[Citation.]” (Rappleyea v. Campbell¿(1994) 8 Cal. 4th 975, 981-82.) 

Here, in light of the parties’ stipulation to set aside default and review of the declarations in support of setting aside default, the court agrees that setting aside default is proper. First, Defendant timely moved to set aside default because he filed the instant motion within 3 months of entry of default. Second, Defendant, as a party, relied on his prior counsel to defend him in this lawsuit and retained new counsel when prior counsel stopped returning his calls. (Ravelo Decl. ¶¶ 4-5.)

Accordingly, Defendant has demonstrated good cause to set aside default.

Therefore, Defendant’s motion to set aside default is GRANTED.

CONCLUSION:

            For the foregoing reasons, the Court decides the pending motion as follows:

1.Motion to Quash Service of Summons and Complaint is DENIED;

2.Motion to Set Aside Default is GRANTED.

The proposed Answer filed 9/19/23 is deemed filed. Defendant ordered to file stand alone document Captioned “Answer” within ten days.

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             November 2, 2023                  __________________________________                                                                                                                Upinder S. Kalra

                                                                                    Judge of the Superior Court