Judge: Virginia Keeny, Case: 18VECV00374, Date: 2023-02-08 Tentative Ruling

Case Number: 18VECV00374    Hearing Date: February 8, 2023    Dept: W

NAVY FEDERAL CREDIT UNION V. ABDOL BEIGI

MOTION TO VACATE AND SET ASIDE DEFAULT AND DEFAULT JUDGMENT AND RECALL AND QUASH WRIT OF EXECUTION

Date of Hearing:        February 8, 2023                               Trial Date:       N/A

Department:              W                                                        Case No.:        18VECV00374

Moving Party:            Defendant Abdol Beigi

Responding Party:     Plaintiff Federal Credit Union  

BACKGROUND

Plaintiff alleges that Plaintiff and Defendant entered into three Agreements for credit. Plaintiff further alleges that there are remaining balances in the sums of $20,777.62; $18,795.53; and $5,262.73 for a total balance of $44,845.88 due and owing.

On December 28, 2018, Plaintiff filed a complaint against Defendant for Breach of Contract and Common Counts seeking damages in the sum of $44,835.88. 

TENTATIVE RULLING

Defendant Abdol Beigi’s Motion to Vacate and Set Aside Default and Default Judgment and Recall and Quash Writ of Execution is GRANTED.

DISCUSSION

Defendant Abdol Beigi moves this court for an order vacating and setting aside the default entered against him on May 1, 2019 and the default judgment entered against him on June 27, 2019 as well as recalling and quashing all writs of execution and abstracts of judgment that may have been issued. Defendant Beigi argues Plaintiff failed to comply with the requirements of Code of Civil Procedure section 415.20 for substituted service and therefore, the entry of default and default judgment are void.

Code of Civil Procedure section 415.20 provides that “[i]f a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served  . . . 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 . . . in the presence of a competent member of the household . . . 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 . . . .” (CCP §415.20(b).)

On January 11, 2019, the Proof of Service was filed in this action. (Stelmach Decl ¶4.) In the POS, registered California process server Jose Felix Nava, attested under penalty of perjury to serving Defendant on January 6, 2019 by substituted service on Defendant’s co-occupant, Navid Doe, at 6800 Corbin Avenue, Unit 302, Reseda, CA 91355. (Stelmach Decl. ¶4.) This was the address Defendant had listed on his loan application. (Stelmach Decl. ¶5, Exh. B.) A declaration of due diligence and Proof of Service by first class mail, signed by Nava, was also filed along with the POS. (Stelmach Decl. ¶4.) 

The POS is signed by a registered California process server under penalty of perjury and a declaration of diligence is attached.¿ Evidence Code section 647 provides that a registered process server’s declaration of service establishes a rebuttable presumption of proper service.  (American Express Centurion Bank v. Zara (2011) 199¿Cal.App.4th 383, 390; Evid. Code § 647.)¿This rebuttable presumption shifts the burden to Defendant to produce evidence showing that they were improperly served. 

In support of their motion, Defendant Beigi presents evidence that he did not live, reside, work or receive mail at 6800 Corbin Avenue when the substituted service occurred in 2019. (Beigi Decl. Exhs. B-E.) Defendant Beigi only discovered the default and default judgment against him when he received notice of a wage garnishment. (Beigi Decl. ¶10.) Accordingly, the court finds the judgment is void. Under section 473(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.”  (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.) Defendant presents evidence that he did not reside at the Corbin address at the time of service. Although the Corbin address was listed on Defendant’s loan application, this application was completed five years before service. Plaintiff fails to present any evidence they conducted any kind of search before attempting to serve Defendant at an address that was provided roughly five years ago. As such, the court finds the substituted service did not occur at Plaintiff’s dwelling house or usual place of business in the presence of a competent member of the household. (See CCP §415.20(b).) Because Defendant did not have actual notice of the proceedings, the judgment is void and the court has the inherent authority to vacate the default and default judgment as a matter of law. (CCP §473(d).)

Accordingly, any abstract of judgment or writ of execution is ordered recalled and quashed and any levied property must be returned to defendant. 

Defendant Beigi further argues because the POS is void and judgment must be set aside, this court should dismiss this action because more than three years have elapsed since its commencement and Plaintiff has never served Defendant. The court finds Code of Civil Procedure section 583.250  controls and mandates dismissal of this action without prejudice.  (See Dill v. Berquist Construction Co.  (1994) 24 Cal.App. 4^th 1426, 1445 [upholding dismissal of action after default judgment set aside for lack of personal jurisdiction, where case was more than 3 years old.)