Judge: Walter P. Schwarm, Case: 30-2022-01274790, Date: 2023-08-08 Tentative Ruling
Defendant’s (Alex D. Vo) Motion to Set Aside Default and Default Judgment; and to Quash Service (Motion), filed on 3-8-23 under ROA No. 53, is GRANTED in part and DENIED in part.
Motion to Quash:
“The entry of a default terminates a defendant's rights to take any further affirmative steps in the litigation until either its default is set aside or a default judgment is entered. [Citations.] ‘A defendant against whom a default has been entered is out of court and is not entitled to take any further steps in the cause affecting plaintiff's right of action; he cannot thereafter, until such default is set aside in a proper proceeding, file pleadings or move for a new trial or demand notice of subsequent proceedings.’ [Citation.]” (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385–386 (Devlin).) Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1301 (Sporn), states, “After the default was entered, defendant was no longer an active party in the litigation and thus was not entitled to any further notices. ‘The clerk's entry of default cuts off the defendant's right to take further affirmative steps such as filing a pleading or motion, and the defendant is not entitled to notices or service of pleadings or papers.’ [Citations.]”
Here, the default was entered against Defendant on 11-22-22. The default judgment was entered on 1-9-23. Thus, the only motion this court can hear is the motion to set aside the default and default judgment. Therefore, the court DENIES the Motion to the extent it seeks to quash service.
Motion to Set Aside Default and Default Judgment:
Code of Civil Procedure section 473.5 states, “(a) When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered. ¶ (b) A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action. ¶ (c) Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.”
Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180 (Trackman), states, “Thus, a party can make a motion showing a lack of actual notice not caused by avoidance of service or inexcusable neglect, but such motion must be made no later than two years after entry of judgment, and the party must act with diligence upon learning of the judgment. (§ 473.5; see Younger, California Motions (2009–2010 ed.) § 26:30, p. 766 [‘it does not require a showing that plaintiff did anything improper. . . . [T]he defaulting defendant simply asserts that he or she did not have actual notice’]; Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444, 29 Cal.Rptr.2d 746 (Dill ).)” (Italics in Trackman.)
Initially, the court notes that the Motion is timely because Defendant brought this Motion within two years of the entry of the default judgment. The filing of this Motion on 3-8-23 is within two years of 1-9-23 which was the date of the entry of the default judgment.
Plaintiff’s (Wells Fargo Bank, National Association) Opposition to Motion to Set Aside Default and Default judgment and to Quash Service By Alex Vo (Opposition), filed on 7-20-23 under ROA No. 73, states, “Code of Civil Procedure Section 473.5 permits a default to be set aside if the defendant demonstrates he lacked knowledge that the lawsuit existed. This lack of knowledge cannot be caused by the defendant’s inexcusable neglect or avoidance of service. Alex has not done that here. The Declaration of Alex Vo does not address the fact that the process server visited the address six (6) times and multiple court documents were mailed to him at the address at which he admits he lives – 332 Gulf Stream Way, Costa Mesa, California. Aside from his attacks on the sworn statement of the process server attesting that service was made on Alex Vo he provides no other reason for setting aside the entry of default and default judgment. Given the attestation of the process server, and the many documents that were mailed to his home, his claim that he only received a copy of the Default Judgment at the address and not the multitude of other documents sent to him and lacked actual knowledge of the lawsuit is not credible.” (Opposition; 3:16-26.)
The declaration from Defendant states in part, “There was no service of the surrmons and the complaint at my home on the date and at the time as alleged in the proof of service. [¶] On August 22,2022 around 6:15PM and throughout the evening, I had been at home with my wife Helen and my daughter Kennedy. During the period we did not have any process server who came to knock the door and/or deliver the court papers. [¶] There was no other co-occupant(s) lived with us at the house. The dwelling house has always been occupied by me, my wife Helen, and my daughter K only. [¶] I do not know any person by the name of "John Lee" and we did not have a co-occupant ‘John Lee’ ever lived with us. [¶] I did not learn about this action until after I received the court notice in the mail that the judgment has been entered against me. [¶] I did not conceal myself to avoid personal service and this failure to respond was not caused by any of my inexcusable neglect.” (Vo Decl., ¶¶ 2-7; See also, Helen Nguyen Decl., ¶¶ 2-5.)
The Proof of Service, filed on 8-31-22 under ROA No. 9, indicates that Defendant accomplished service by way of substituted service on “John Lee – Co-Occupant.” (Code Civ. Proc., § 415.20.) The registered process server executed the Proof of Service on 8-23-22. Defendant submitted an Amended Proof of Service of Summons executed by the registered process server on 6-8-23. (Ramirez-Browning Decl., ¶ 2 and Exhibit 1.) The Amended Proof of Service states that the process server left the documents identified in the Proof of Service with “John Lee (Asian Male 45-55 years old 6’0-6’-5 190-210 lbs Black Hair and Brown Eyes) – Co-Occupant.” (Proof of Service.)
Code of Civil Procedure section 415.20, subdivision (b), states, “(b) 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.”
Evidence Code section 647 states, “The return of a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.”
Defendant and his wife, Helen Nguyen, submit declarations showing that John Lee did not was not a co-occupant of their residence on the day the alleged service occurred. (Vo Decl., ¶¶ 3-6; Nguyen Decl., ¶¶ 2-5.) Defendant’s evidence disputes that he identified himself as “John Lee” based on the difference between Defendant’s physical characteristics and the physical characteristics of “John Lee” described in the Amended Proof of Service. Defendant did not provide a declaration from the registered process server as to whether Defendant was the person who identified himself as “John Lee.” Plaintiff’s evidence is sufficient to overcome the presumption of proper service especially given the difference in physical characteristics between Defendant and the person identified as “John Lee” in the Amended Proof of Service.
The court recognizes that Defendant sent documents to the address Defendant acknowledges as Defendant’s address. (Browning-Ramirez Decl., ¶¶ 3-7.) The issue, however, is whether the service of summons resulted in actual notice to Defendant under Code of Civil Procedure section 473.5. Since Defendant’s evidence is sufficient to overcome the presumption of proper service, the court finds that the service of the summons did not result in actual notice to Defendant in time to defend this action.
Therefore, the court GRANTS Defendant’s (Alex D. Vo) Motion to Set Aside Default and Default Judgment; and to Quash Service, filed on 3-8-23 under ROA No. 53, pursuant to Code of Civil Procedure section 473.5. The court ORDERS Defendant to file and serve a responsive pleading no later than 8-11-23. The court DENIES the Motion to the extent it seeks to quash service.
Plaintiff is to give notice.