Judge William A. Crowfoot, Case Number: 22AHCV01108, Date: 2025-01-23 Tentative Ruling

Judge: William A. Crowfoot, Case: 22AHCV01108, Date: 2025-01-23 Tentative Ruling

On November 17, 2022, plaintiff Lakeview Village Corporation (“Plaintiff”) filed this action against defendant Heng Lao dba UFC Gym (“Defendant”). On March 8, 2024, the Court entered a default judgment in Plaintiff’s favor. On November 5, 2024, Defendant filed this motion to vacate and set aside the default and default judgment.

The court has broad discretion to vacate the entry of default, default judgment, or a dismissal where the moving party timely establishes a proper ground for relief. (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.) “The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc., § 473, subd. (d).) “A default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.” (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1200, citations omitted; Ellard v. Conway (2001) 94 Cal.App.4th 540, 544 [compliance with statutory procedures for service of process essential to establish personal jurisdiction].) Therefore, “[u]nder section 473, subdivision (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.” (Id.; Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.)

Here, Defendant argues that the default judgment must be set aside because he was not properly served with the summons and complaint. Plaintiff previously attempted to serve Defendant at 2915 Lombardy Road, Pasadena, California (“Lombardy Address”) with the original complaint, but service was insufficient because there was no declaration showing that a reasonably diligent attempt to personally serve Defendant was made.

After Plaintiff filed the FAC on April 3, 2023, it filed a proof of service stating that Plaintiff was served by substituted service on June 17, 2023, by leaving copies of the summons and complaint at Defendant’s house, located at 9853 Walnut Street in Bellflower, California (“Walnut Address”), with Garry Lao. An affidavit of reasonable diligence filed on June 13, 2023, reflects that service was attempted at the Lombardy Address several times before the papers were left at the Walnut Address.

Defendant declares that leaving the papers with Garry Lao at the Walnut Address is insufficient to establish proper service because they have resided at the Lombardy Address since 2020. (Motion, Ex. C, ¶ 2.) Defendant further declares that they have never resided at the Walnut Address. (Motion, Ex. C, ¶ 3.)

In opposition, Plaintiff argues substituted service at the Walnut Address was proper because the address was found through a skip trace and listed as Defendant’s second most recent address. (Opp., Ex. B.) But the skip trace provides the following timeframe after identifying the Walnut Address: “04/2000 to 03/21/2023” while the alleged service took place on June 17, 2023. (Id.) Also, the affidavit of reasonable diligence shows attempts to personally serve Defendant at “home”, i.e., the Lombardy Address. If Plaintiff believed that the Walnut Address was actually Defendant’s home, it should have made several attempts to personally serve Defendant there before leaving the documents with Garry Lao. Regardless of the sincerity of Plaintiff’s belief, the evidence shows that Defendant resides at the Lombardy Address and that Plaintiff was never properly served with the summons and complaint. The fact that Defendant knew of the pending action does not absolve Plaintiff of its responsibility to comply with the statutory requirements for service of process. Furthermore, because service was not proper, the six-month timeframe for a motion to set aside the judgment under section 473(b) is inapplicable.

Based on the foregoing, Defendant’s motion is GRANTED. The default judgment and entry of default is VACATED. A Case Management Conference is scheduled for _________ at 8:30 a.m. in Department 3.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.