ROSALINA CORTEZ VS SAUL ANTONIO FLORES MENJIVAR

Tentative Rulings

Case Number: 19STLC07756    Hearing Date: October 01, 2020    Dept: 25

HEARING DATE: Thu., October 1, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Cortez v. Menjivar COMPL. FILED: 8-21-19

CASE NUMBER: 19STLC07756 DEFAULT : 03-16-20

PROCEEDINGS: MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT

MOVING PARTY: Defendant Saul Antonio Flores Menjivar

RESP. PARTY: None

MOTION TO SET ASIDE/VACATE DEFAULT AND DEFAULT JUDGMENT

(CCP § 473; equitable grounds)

TENTATIVE RULING:

Defendant Saul Antonio Flores Menjivar’s Motion to Set Aside the Default and Default Judgment is CONTINUED TO NOV 17, 2020 at 10:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defendant must file and serve supplemental papers addressing the deficiencies identified herein. Failure to do so may result in the Motion being placed off calendar or denied.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of September 29, 2020 [ ] Late [X] None

REPLY: None filed as of September 29, 2020 [ ] Late [X] None

ANALYSIS:

1. Background & Discussion

On August 21, 2019, Plaintiff Rosalina Cortez (“Plaintiff”) filed an action for motor vehicle negligence against Defendant Saul Antonio Flores Menjivar (“Defendant”). Plaintiff filed a proof of service, signed by a registered process server, showing that Defendant was served by substituted service at 149 W. 70th St., Los Angeles, CA 90003 (the “70^th St. Address”). (11/14/20 Proof of Service.)

Following Defendant’s failure to file a responsive pleading, default was entered against him on March 16, 2020. A default judgment in the amount of $25,568.35 was entered on April 28, 2020 (the “Judgment”).

On June 29, 2020, Defendant filed the instant Motion to Set Aside the Default and Default Judgment (the “Motion”). On June 30, 2020, the Court scheduled the Motion for hearing for October 1, 2020 at 9:30 a.m. and ordered Defendant to give notice. (6/30/20 Minute Order.)

As an initial matter, the Court notes that Defendant did not file a proof of service demonstrating Plaintiff was served with the Court’s June 30^th Order scheduling this hearing. Thus, the Court cannot determine whether Plaintiff did not file an opposition because it does not oppose the Motion or because it was unaware of this hearing date and the opposition deadline.

For the sake of completeness, the Court also notes that Defendant’s Motion is insufficiently supported. Defendant argues, in part, that it was served with process at the wrong address, but only provides his own self-serving declaration without any supporting documentary evidence. Importantly, the proof of service was signed by a registered California process server. (11/14/20 Proof of Service.) A proof of service containing a declaration from a registered process server invokes a presumption of valid service. (See American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; see also Evid. Code § 647.) This presumption is rebuttable. (See id.) The party seeking to defeat service of process must present sufficient evidence to show that the service did not take place as stated. (See Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1428; cf. People v. Chavez (1991) 231 Cal.App.3d 1471, 1483 [“If some fact be presumed, the opponent of that fact bears the burden of producing or going forward with evidence sufficient to overcome or rebut the presumed fact.”].) Merely denying service took place without more is insufficient to overcome the presumption. (See Yadegar, supra, 194 Cal.App.4th at 1428.)

Thus, Defendant is ordered to file and serve supplemental papers addressing the deficiencies noted above.

1. Conclusion & Order

For the foregoing reasons, Defendant Saul Antonio Flores Menjivar’s Motion to Set Aside the Default and Default Judgment is CONTINUED TO NOV 17, 2020 at 10:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defendant must file and serve supplemental papers addressing the deficiencies identified herein. Failure to do so may result in the Motion being placed off calendar or denied.

Moving party is ordered to give notice.