SADDLETREE RANCH HOMEOWNERS ASSOCIATION VS GERALD EKPE

Tentative Rulings

Case Number: 20STLC06628    Hearing Date: May 27, 2021    Dept: 25

PROCEEDINGS: MOTION TO SET ASIDE VOID DEFAULT

MOVING PARTY: Defendant Gerald Ekpe

RESP. PARTY: None

MOTION TO SET ASIDE/VACATE DEFAULT

(CCP §§ 473(d), 473.5)

TENTATIVE RULING:

Defendant Gerald Ekpe’s unopposed Motion to Set Aside Void Default is GRANTED. The default entered on October 20, 2020 is HEREBY VACATED.

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 May 25, 2021 [ ] Late [X] None

REPLY: None filed as of May 25, 2021 [ ] Late [X] None

ANALYSIS:

I. Background

On August 7, 2020, Plaintiff Saddletree Ranch Homeowners Association (“Plaintiff”) filed an action for breach of covenants, quantum meruit, account stated, and to foreclose lien against Defendant Gerald Ekpe (“Defendant”). Plaintiff filed a proof of service on October 13, 2020 purporting to show that Defendant was substitute served by J. Figueroa, a registered process server, on August 26, 2020 at 16133 Filbert Street, Sylmar CA 91342 (the “Filbert Address”). (10/13/20 Proof of Service.) The documents were left with Sarah Jeredini and were thereafter mailed to the Filbert Address.

Following Defendant’s failure to respond, default was entered against him on October 20, 2020.

On December 1, 2020, Defendant filed the instant Motion to Set Aside Void Default (the “Motion”).

At the initial February 8, 2021 hearing, the Court found that Defendant’s argument that he did not live at the Filbert Address lacked evidentiary support. (2/8/21 Minute Order.) Defendant was ordered to file and serve supplemental papers demonstrating he did not live at the Filbert Address at the time he was purportedly served. (Id.) Defendant filed supplemental papers on March 26, 2021.

At the continued April 12 hearing, the Court found Defendant’s evidence remained insufficient, but continued the hearing one last time. (4/12/21 Minute Order.) Defendant filed a supplemental declaration on May 4, 2021.

No opposition was filed.

II. Legal Standard

“A summons is the process by which a court acquires personal jurisdiction over a defendant in a civil action. The form of a summons is prescribed by law, and this form must be substantially observed. [Citation.] Service of a substantially defective summons does not confer jurisdiction over a party [citation] and will not support a default judgment. [Citation.]” (MJS Enterprises, Inc. v. Superior Court (1984) 153 Cal.App.3d 555, 557.) “Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.’ [Citation.]” (Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 858, emphasis added.)

A trial court has the inherent power to set aside a judgment void on its face at any time. (Connelly v. Castillo (1987) 190 Cal.App.3d 1583, 1588.) When considering the facial validity of ta judgment, the Court may only consider the contents of the judgment roll. (OC Interior Services, LLC v. Nationstar Mortgage, LLC (2017) 7 Cal.App.5th 1318, 1327 (holding that “[t]o prove that the judgment is void, the party challenging the judgment is limited to the judgment roll, i.e., no extrinsic evidence allowed.”).) If the judgment is not void on its face, the time limitations of Code of Civil Procedure section 473.5 apply. (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180-81; Schekel v. Resnik (1994) 27 Cal.App.4th Supp. 1, 3-4 (“[t]he Rogers court held that the time limitation set forth in Code of Civil Procedure section 473.5 applies by analogy to motions for relief from default judgment valid on its face but otherwise void for improper service” [citing Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1124.]).)

III. Discussion

As noted at a previous hearing, the proof of service filed on October 13, 2020 is valid on its face. (2/8/21 Minute Order.) Defendant argues the default entered against him is void because he was never served with the Complaint. (Mot., p. 3:1-8.)

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…” (Code Civ. Proc., § 415.20, subd. (b).)

Defendant attests that he was not properly sub-served because he does not live at the Filbert address and states that Sarah Jeredini is not a member of his family. (Mot., Ekpe Decl., ¶¶ 1-3.) He further attests that, for the past eight years, he has resided at No. 17 Abakiliki Road GRA, Enugu, Nigeria. (Id.)

In his supplemental declaration, Defendant attests that he left the United States in May 2012 and has been residing in Nigeria since then. (5/4/21 Supp. Decl., ¶¶ 3-4.) He also includes a copy of his passport with an entry visa from the Federal Republic of Nigeria demonstrating the visa was issued on February 2, 2012. (Id., Exh. 1.) Defendant submits a copy of his National Identification Number Slip issued by the Nigerian National Identify Management System in December 2014 as well as a copy of his Nigerian driver’s license issued in February 2018. (Id. at ¶ 4, Exh. 2.) Further, he obtained an Affidavit of Facts executed by the Court of Appeal of Nigeria, Enugu Judicial Division Holden at Enugu on March 18, 2021 stating, in part, that Defendant is currently residing in Nigeria. (Id. at ¶ 5, Exh. 3.)

The Court finds Defendant has demonstrated service at the Filbert Address was not proper because did not reside there. Because Defendant was not served at a proper address, the default entered against him is void. Thus, Defendant’s unopposed Motion is GRANTED.

IV. Conclusion & Order

For the foregoing reasons, Defendant Gerald Ekpe’s unopposed Motion to Set Aside Void Default is GRANTED. The default entered on October 20, 2020 is HEREBY VACATED.

Moving party is ordered to give notice.

Case Number: 20STLC06628    Hearing Date: April 12, 2021    Dept: 25

HEARING DATE: Mon., April 12, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Saddletree Ranch HOA v. Ekpe COMPL. FILED: 08-07-20

CASE NUMBER: 20STLC06628 DEFAULT: 10-20-20

PROCEEDINGS: MOTION TO SET ASIDE VOID DEFAULT

MOVING PARTY: Defendant Gerald Ekpe

RESP. PARTY: None

MOTION TO SET ASIDE/VACATE DEFAULT

(CCP § 473(d); 473.5)

TENTATIVE RULING:

Defendant Gerald Ekpe’s Motion to Set Aside Void Default is CONTINUED TO MAY 27, 2021 AT 10:00 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 as requested 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 April 8, 2021 [ ] Late [X] None

REPLY: None filed as of April 8, 2021 [ ] Late [X] None

ANALYSIS:

1. Background

On August 7, 2020, Plaintiff Saddletree Ranch Homeowners Association (“Plaintiff”) filed an action for breach of covenants, quantum meruit, account stated, and to foreclose lien against Defendant Gerald Ekpe (“Defendant”). Plaintiff filed a proof of service on October 13, 2020 purporting to show that Defendant was substitute served by J. Figueroa, a registered process server, on August 26, 2020 at 16133 Filbert Street, Sylmar CA 91342 (the “Filbert Address”). (10/13/20 Proof of Service.) The documents were left with Sarah Jeredini and were thereafter mailed to the Filbert Address.

Following Defendant’s failure to respond, default was entered against him on October 20, 2020.

On December 1, 2020, Defendant filed the instant Motion to Set Aside Void Default (the “Motion”). No opposition was filed.

At the initial February 8, 2021 hearing, the Court found that Defendant’s argument that he did not live at the Filbert Address lacked evidentiary support. (2/8/21 Minute Order.) Defendant was ordered to file and serve supplemental papers demonstrating he did not live at the Filbert Address at the time he was purportedly served. (Id.)

Defendant filed supplemental papers on March 26, 2021.

1. Legal Standard

“A summons is the process by which a court acquires personal jurisdiction over a defendant in a civil action. The form of a summons is prescribed by law, and this form must be substantially observed. [Citation.] Service of a substantially defective summons does not confer jurisdiction over a party [citation] and will not support a default judgment. [Citation.]” (MJS Enterprises, Inc. v. Superior Court (1984) 153 Cal.App.3d 555, 557.) “Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.’ [Citation.]” (Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 858, emphasis added.)

A trial court has the inherent power to set aside a judgment void on its face at any time. (Connelly v. Castillo (1987) 190 Cal.App.3d 1583, 1588.) When considering the facial validity of ta judgment, the Court may only consider the contents of the judgment roll. (OC Interior Services, LLC v. Nationstar Mortgage, LLC (2017) 7 Cal.App.5th 1318, 1327 (holding that “[t]o prove that the judgment is void, the party challenging the judgment is limited to the judgment roll, i.e., no extrinsic evidence allowed.”).) If the judgment is not void on its face, the time limitations of Code of Civil Procedure section 473.5 apply. (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180-81; Schekel v. Resnik (1994) 27 Cal.App.4th Supp. 1, 3-4 (“[t]he Rogers court held that the time limitation set forth in Code of Civil Procedure section 473.5 applies by analogy to motions for relief from default judgment valid on its face but otherwise void for improper service” [citing Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1124.]).)

1. Discussion

As noted at the previous hearing, the proof of service filed on October 13, 2020 is valid on its face. (2/8/21 Minute Order.) Defendant argues the default entered against him is void because he was never served with the Complaint. (Mot., p. 3:1-8.)

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…” (Code Civ. Proc., § 415.20, subd. (b).)

Defendant previously provided his declaration stating he was not served with the Summons and Complaint, in person or by mail because he does not live at the Filbert Address. (Mot., Ekpe Decl., ¶¶ 1-3.) He also stated that Sarah Jeredini is not a member of his family or household and that for the past eight years, he has resided at No. 17 Abakiliki Road GRA, Enugu, Nigeria. (Id.) The declaration attached to his moving papers was executed in Enugu, Nigeria but sworn under the laws of the State of California in accordance with Code of Civil Procedure section 2015.5. (See Id.)

Defendant provides an Affidavit of Facts issued by the Court of Appeal of Nigeria, Enugu Judicial Division Holden at Enugu, which states, (1) that Defendant is the deponent; (2) that Defendant “used to reside at the United States of America, at 16133, Filbert St., Sylmar, CA 91342 U.S.A.,” (3) that Defendant is a real estate broker by profession; and (4) that Defendant is “residing now in Nigeria”. (3/26/21 Supp. Ekpe Decl., Exh. 3.) However, because the affidavit does not include any dates, it, alone, does not confirm Defendant was not living at the Filbert Address on August 26, 2020 when he was purportedly served.

Defendant also states in his supplemental declaration that he left the United States in May 2012 and has been living in Nigeria ever since. (3/26/21 Supp. Ekpe Decl., ¶¶ 3-5.) As evidence, he provides a copy of two pages of his passport indicating he was issued a visa in February 2012 and entered Nigeria on May 6, 2012. (Id., Exh. 1.) He also provides a copy of a document titled National Identity Management System, Federal Republic of Nigeria, National Identification Number Slip with an issue date of December 6, 2014 and an illegible copy of what Defendant states is his Nigerian driver’s license issued on February 18, 2018. (Id., Exh. 2.) The supplemental declaration was executed in Enugu, Nigeria, but was not sworn under the laws of the State of California. (Id. at p. 2) Instead, the declaration states, “I make this solemn declaration sincerely and consistently believing same to be true and correct in accordance with the Oaths Act, 2004.” (Id.)

Code of Civil Procedure section 2015.5 requires declarations executed outside of California to set forth the date of execution and “that it is so certified or declared under the laws of the State of California.” Declarations that fail to comply with the requirements of Section 2015.5 have no evidentiary value. (ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 217.)

The hearing is CONTINUED one final time to allow Defendant an opportunity to correct the errors noted above.

1. Conclusion & Order

For the foregoing reasons, Defendant Gerald Ekpe’s Motion to Set Aside Void Default is CONTINUED TO MAY 27, 2021 AT 10:00 A.M. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next hearing, Defendant must file and serve supplemental papers as requested herein. Failure to do so may result in the Motion being placed off calendar or denied.

Moving party is ordered to give notice.

Case Number: 20STLC06628    Hearing Date: February 08, 2021    Dept: 25

HEARING DATE: Mon., February 8, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Saddletree Ranch HOA v. Ekpe COMPL. FILED: 08-07-20

CASE NUMBER: 20STLC06628 DEFAULT: 10-20-20

PROCEEDINGS: MOTION TO SET ASIDE VOID DEFAULT

MOVING PARTY: Defendant Gerald Ekpe

RESP. PARTY: None

MOTION TO SET ASIDE/VACATE DEFAULT

(CCP § 473(d); 473.5)

TENTATIVE RULING:

Defendant Gerald Ekpe’s Motion to Set Aside Void Default is CONTINUED TO APRIL 12, 2021 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 as requested 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 February 4, 2021 [ ] Late [X] None

REPLY: None filed as of February 4, 2021 [ ] Late [X] None

ANALYSIS:

1. Background

On August 7, 2020, Plaintiff Saddletree Ranch Homeowners Association (“Plaintiff”) filed an action for breach of covenants, quantum meruit, account stated, and to foreclose lien against Defendant Gerald Ekpe (“Defendant”). Default was entered against Defendant on October 20, 2020.

On December 1, 2020, Defendant filed the instant Motion to Set Aside Void Default (the “Motion”). To date, no opposition has been filed.

1. Legal Standard

“A summons is the process by which a court acquires personal jurisdiction over a defendant in a civil action. The form of a summons is prescribed by law, and this form must be substantially observed. [Citation.] Service of a substantially defective summons does not confer jurisdiction over a party [citation] and will not support a default judgment. [Citation.]” (MJS Enterprises, Inc. v. Superior Court (1984) 153 Cal.App.3d 555, 557.) “Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.’ [Citation.]” (Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 858, emphasis added.)

A trial court has the inherent power to set aside a judgment void on its face at any time. (Connelly v. Castillo (1987) 190 Cal.App.3d 1583, 1588.) When considering the facial validity of ta judgment, the Court may only consider the contents of the judgment roll. (OC Interior Services, LLC v. Nationstar Mortgage, LLC (2017) 7 Cal.App.5th 1318, 1327 (holding that “[t]o prove that the judgment is void, the party challenging the judgment is limited to the judgment roll, i.e., no extrinsic evidence allowed.”).) If the judgment is not void on its face, the time limitations of Code of Civil Procedure section 473.5 apply. (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180-81; Schekel v. Resnik (1994) 27 Cal.App.4th Supp. 1, 3-4 (“[t]he Rogers court held that the time limitation set forth in Code of Civil Procedure section 473.5 applies by analogy to motions for relief from default judgment valid on its face but otherwise void for improper service” [citing Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1124.]).)

1. Discussion

Plaintiff filed a proof of service on October 13, 2020 purporting to show that Defendant was substitute served on August 26, 2020 at 16133 Filbert Street, Sylmar CA 91342 (the “Filbert Address”). (10/13/20 Proof of Service.) The documents were left with Sarah Jeredini and were thereafter mailed to the Filbert Address. (Id.) This proof of service is valid on its face.

Defendant’s Motion is timely. He argues the default entered against him is void because he was never served with the Complaint. (Mot., p. 3:1-8.)

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…” (Code Civ. Proc., § 415.20, subd. (b).)

Defendant provides only his declaration stating that he was not served with the Summons and Complaint, in person or by mail, because he does not live at the Filbert Address and that for the past eight years, he has resided at No. 17 Abakiliki Road GRA, Enugu, Nigeria. (Mot., Ekpe Decl., ¶¶ 1-3.) He further states that Sarah Jeredini is not a member of his family or household. (Id.) However, the Court finds this insufficient. Defendant did not include any corroborating documentary evidence with his Motion. Thus, Defendant is ordered to file and serve supplemental papers demonstrating the Filbert Address was not his place of residence or usual mailing address on August 26, 2020.

1. Conclusion & Order

For the foregoing reasons, Defendant Gerald Ekpe’s Motion to Set Aside Void Default is CONTINUED TO APRIL 12, 2021 AT 10:30 A.M. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next hearing, Defendant must file and serve supplemental papers as requested herein. Failure to do so may result in the Motion being placed off calendar or denied.

Moving party is ordered to give notice.