This case was last updated from Los Angeles County Superior Courts on 10/09/2020 at 06:59:08 (UTC).

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY VS PEDRO NUNEZ, ET AL.

Case Summary

On 10/04/2019 STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY filed a Personal Injury - Motor Vehicle lawsuit against PEDRO NUNEZ. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is SERENA R. MURILLO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******9190

  • Filing Date:

    10/04/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Motor Vehicle

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

SERENA R. MURILLO

 

Party Details

Plaintiff

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Defendants

NUNEZ PEDRO

CITY CENTER PARKING INC.

Attorney/Law Firm Details

Plaintiff Attorney

SCHOECK MICHAEL D.

Defendant Attorney

RITHOLZ ANDREW NORMAN

 

Court Documents

Opposition (name extension) - Opposition TO MOTION TO SET ASIDE DEFAULT

8/24/2020: Opposition (name extension) - Opposition TO MOTION TO SET ASIDE DEFAULT

Answer - Answer

9/8/2020: Answer - Answer

Demand for Jury Trial - Demand for Jury Trial

9/8/2020: Demand for Jury Trial - Demand for Jury Trial

Notice (name extension) - Notice of Hearing on Motion to Set Aside and Vacate Entry of Default and Default Judgment; Points and Authorities; Declarations of Andrew Ritholz, Janet Kurtin and Somme Saha

7/16/2020: Notice (name extension) - Notice of Hearing on Motion to Set Aside and Vacate Entry of Default and Default Judgment; Points and Authorities; Declarations of Andrew Ritholz, Janet Kurtin and Somme Saha

Declaration Pursuant to 585 CCP in Support of Default Judgment - Declaration Pursuant to 585 CCP in Support of Default Judgment

6/18/2020: Declaration Pursuant to 585 CCP in Support of Default Judgment - Declaration Pursuant to 585 CCP in Support of Default Judgment

Request for Dismissal - Request for Dismissal

6/18/2020: Request for Dismissal - Request for Dismissal

Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

6/18/2020: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

Summary of the Case - Summary of the Case

6/18/2020: Summary of the Case - Summary of the Case

Notice (name extension) - Notice Notice of Hearing on Motion to Set Aside and Vacate Entry of Default and Default Judgment; Points and Authorities; Declarations of Andrew Ritholz, Janet Kurtin and Som

7/1/2020: Notice (name extension) - Notice Notice of Hearing on Motion to Set Aside and Vacate Entry of Default and Default Judgment; Points and Authorities; Declarations of Andrew Ritholz, Janet Kurtin and Som

Motion to Set Aside/Vacate Default and / or Default Judgment - Motion to Set Aside/Vacate Default and / or Default Judgment

7/1/2020: Motion to Set Aside/Vacate Default and / or Default Judgment - Motion to Set Aside/Vacate Default and / or Default Judgment

Minute Order - Minute Order (Court Order)

7/10/2020: Minute Order - Minute Order (Court Order)

Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

3/10/2020: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

Request for Dismissal - Request for Dismissal

3/10/2020: Request for Dismissal - Request for Dismissal

Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

1/2/2020: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

Proof of Service by Substituted Service - Proof of Service by Substituted Service

10/29/2019: Proof of Service by Substituted Service - Proof of Service by Substituted Service

Complaint - Complaint

10/4/2019: Complaint - Complaint

Summons - Summons on Complaint

10/4/2019: Summons - Summons on Complaint

Declaration (name extension) - Declaration DECLARATION OF VENUE

10/4/2019: Declaration (name extension) - Declaration DECLARATION OF VENUE

15 More Documents Available

 

Docket Entries

  • 10/07/2022
  • Hearing10/07/2022 at 08:30 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service

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  • 04/02/2021
  • Hearing04/02/2021 at 08:30 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 09/08/2020
  • DocketUpdated -- Motion to Set Aside/Vacate Default and / or Default Judgment: Filed By: CITY CENTER PARKING, INC. (Defendant); Result: Granted; Result Date: 09/08/2020

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  • 09/08/2020
  • DocketOn the Complaint filed by STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY on 10/04/2019, Default entered on 06/18/2020, Vacated - .

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  • 09/08/2020
  • DocketAnswer; Filed by: CITY CENTER PARKING, INC. (Defendant); As to: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (Plaintiff)

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  • 09/08/2020
  • DocketNotice of Ruling; Filed by: CITY CENTER PARKING, INC. (Defendant)

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  • 09/08/2020
  • DocketDemand for Jury Trial; Filed by: CITY CENTER PARKING, INC. (Defendant)

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  • 09/08/2020
  • DocketMinute Order (Hearing on Motion to Set Aside/Vacate Default and Default Jud...)

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  • 09/08/2020
  • DocketHearing on Motion to Set Aside/Vacate Default and Default Judgment (CCP 473.5) scheduled for 09/08/2020 at 09:00 AM in Spring Street Courthouse at Department 26 updated: Result Date to 09/08/2020; Result Type to Held - Motion Granted

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  • 08/24/2020
  • DocketProof of Service (not Summons and Complaint); Filed by: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (Plaintiff); As to: PEDRO NUNEZ (Defendant); CITY CENTER PARKING, INC. (Defendant)

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21 More Docket Entries
  • 10/29/2019
  • DocketProof of Service by Substituted Service; Filed by: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (Plaintiff); As to: CITY CENTER PARKING, INC. (Defendant); Proof of Mailing Date: 10/21/2019; Service Cost: 89.50; Service Cost Waived: No

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  • 10/04/2019
  • DocketNon-Jury Trial scheduled for 04/02/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 10/04/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 10/07/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 10/04/2019
  • DocketComplaint; Filed by: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (Plaintiff); As to: PEDRO NUNEZ (Defendant); CITY CENTER PARKING, INC. (Defendant)

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  • 10/04/2019
  • DocketDeclaration DECLARATION OF VENUE; Filed by: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (Plaintiff); As to: PEDRO NUNEZ (Defendant); CITY CENTER PARKING, INC. (Defendant)

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  • 10/04/2019
  • DocketCivil Case Cover Sheet; Filed by: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (Plaintiff); As to: PEDRO NUNEZ (Defendant); CITY CENTER PARKING, INC. (Defendant)

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  • 10/04/2019
  • DocketSummons on Complaint; Issued and Filed by: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (Plaintiff); As to: PEDRO NUNEZ (Defendant); CITY CENTER PARKING, INC. (Defendant)

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  • 10/04/2019
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 10/04/2019
  • DocketFirst Amended Standing Order; Filed by: Clerk

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  • 10/04/2019
  • DocketCase assigned to Hon. Serena R. Murillo in Department 94 Stanley Mosk Courthouse

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Tentative Rulings

Case Number: 19STLC09190    Hearing Date: September 08, 2020    Dept: 26

MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT

(CCP §§ 473(b), 473(d), 473.5)

TENTATIVE RULING:

Defendant City Center, Inc.’s Motion to Vacate Default and Default Judgment is GRANTED.

ANALYSIS:

Plaintiff State Farm Mutual Automobile Insurance Company (“Plaintiff”) filed the instant action for automobile subrogation against Defendants Pedro Nunez (“Defendant Nunez”) and City Center Parking, Inc. (“Defendant City Center”) on October 4, 2019. Following the failure to file a responsive pleading, the court entered default against Defendant City Center on January 2, 2020.

On March 10, 2020, Plaintiff dismissed the Complaint against Defendant Nunez. On June 18, 2020, the Court entered default judgment against Defendant City Center. Defendant City Center filed the instant Motion to Vacate Default and Default Judgment on July 1, 2020. Plaintiff filed its opposition on August 24, 2020.

Discussion

Defendant City Center moves for relief from the default judgment pursuant to Code of Civil Procedure, section 473, subdivision (b), section 473, subdivision (d) and section 473.5. Defendant City Center also moves on equitable grounds. The Court will address each basis for relief below.

Code of Civil Procedure section 473(b)

Under Code of Civil Procedure, section 473, subdivision (b) an application for relief must be made no more than six months after entry of the order from which relief is sought and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) The motion is brought pursuant to discretionary relief prong of section 473, subdivision (b) for Defendant’s own mistake, inadvertence, surprise or neglect. Finally, the Motion must be accompanied by a copy of the moving defendant’s responsive pleading.

The proof of service of the Summons and Complaint states substitute service of the papers was accomplished on Defendant City Center’s agent by leaving the papers with the person apparently in charge of the office, Janet Kurtin, on October 18, 2019. (Proof of Service, filed 10/29/29, ¶¶3-5.) Thereafter, the papers were mailed to the same office on October 21, 2019. (Id. at Decl. of Mailing.)

Defendant City Center must show that default was entered due to its surprise, mistake, inadvertence or excusable neglect. In support of the Motion, Defendant City Center submits a declaration explaining Kurtin was not the person normally in charge of its agent’s office and that she has no recollection of being handed legal papers for this action or transmitting such papers to Defendant City Center’s agent for service of process, Somme Sahab. (Motion, Kurtin Decl., ¶¶2-3.) Kurtin further declares that more than a dozen people work at the office and she is clerical worker who was never authorized to receive service of process. (Ibid.) If Kurtin had been given legal papers, she declares, she would have placed them in the case file maintained in the office. (Ibid.) However, no such papers have been located in the case file. (Id. at ¶3.)

Defendant City Center’s agent, Somme Sahab, states that he did not receive the request for entry of default and only became aware of the action upon receipt of the request for court judgment in the mail in late June, 2020. (Motion, Sahab Decl., ¶¶3-4.)

This evidence demonstrates that Defendant City Center was unaware of the initial service of the Summons and Complaint and the default and default judgment were due to its surprise or inadvertence. It further shows the Motion was promptly filed upon Sahab learning of this action. Finally, a copy of Defendant City Center’s proposed Answer is attached to the Motion. (Motion, Exh. G.) Defendant City Center, therefore, has satisfied the requirements for relief under Code of Civil Procedure section 473, subdivision (b).

Code of Civil Procedure section 473.5

The request to vacate the default and default judgment is also brought pursuant to Code of Civil Procedure section 473.5, subdivision (a), which states:

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.

(Code Civ. Proc., § 473.5, subd. (a).) As discussed above, the Motion was timely brought soon after Defendant City Center’s receipt of the Request for Default Judgment. Also as discussed above, the supporting declarations demonstrate that Defendant City Center did not have actual notice of the action until after entry of default and the week before entry of default judgment. Finally, the supporting declaration of Somme Sahab states that Defendant City Center’s failure to respond to the Complaint was not the result of avoidance of service or inexcusable neglect. (Motion, Sahab Decl., ¶3.) The Court finds Sahab’s declaration credible when it states Defendant City Center has at all times been dealing with Plaintiff regarding the claim at issue in this action and that Defendant would have timely contested the action if aware of the Complaint. (Id. at ¶¶3-6.)

Defendant City Center, therefore, has also satisfied the requirements for relief under Code of Civil Procedure section 473.5.

Code of Civil Procedure section 473(d)

The request to vacate the default and default judgment is also brought pursuant to Code of Civil Procedure section 473, subdivision (d), under which “[t]he court may . . . set aside any void judgment or order.” (Code Civ. Proc., § 473, subd. (d).) In County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1229, the Court of Appeal explained:

[W]here it is shown that there has been a complete failure of service of process upon a defendant, he generally has no duty to take affirmative action to preserve his right to challenge the judgment or order even if he later obtains actual knowledge of it because “[w]hat is initially void is ever void and life may not be breathed into it by lapse of

time.” (Morgan, supra, 105 Cal.App.2d at p. 731, 234 P.2d 319.) Consequently under such circumstances, “neither laches nor the ordinary statutes of limitation may be invoked as a defense” against an action or proceeding to vacate such a judgment or order. (Id. at p. 732, 234 P.2d 319.) And, where evidence is admitted without objection that shows the existence of the invalidity of a judgment or order valid on its face, “it is the duty of the court to declare the judgment or order void.” (Thompson v. Cook (1942) 20 Cal.2d 564, 569, 127 P.2d 909 (Cook ).)

(County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215.) There being no deadline to bring a motion under Code of Civil Procedure section 473, subdivision (d), Defendant City Center’s request for relief under this statute is timely no matter when it was filed and served.

Defendant City Center must show that service of the Summons and Complaint did not comply with the statutory requirements. The proof of substitute service filed on October 29, 2019 is attested to by a registered process server and therefore entitled to a presumption of validity. (Cal. Evid. Code, § 647.) It states that substitute service of the papers was accomplished on Defendant City Center’s agent by leaving the papers with the person apparently in charge of the office, Janet Kurtin, on October 18, 2019. (Proof of Service, filed 10/29/29, ¶¶3-5.) Thereafter, the papers were mailed to the same office on October 21, 2019. (Id., Decl. of Mailing.)

The declarations of Kurtin and Sahab in opposition dispute that Kurtin was the person “apparently in charge of the office” because she was a clerical worker, not the manager or agent for service of process. (Motion, Kurtin Decl., ¶2; Sahab Decl., ¶2.) This evidence is sufficient to overcome the statement in the proof of service that Kurtin was apparently in charge of the office. In opposition, Plaintiff offers no explanation as to why the process server designated Kurtin as the person apparently in charge of the office when there were more than a dozen other people also working there. (See Motion, Kurtin Decl., ¶2.) In fact, Plaintiff’s opposition is not supported by any evidence, let alone evidence sufficient to demonstrate service of the Summons and Complaint in substantial compliance with the statutory requirements.

As Defendant City Center’s evidence demonstrates failure of service of process, the Court finds it is also entitled to relief from entry of default and default judgment under Civil Code section 473, subdivision (d).

Equitable Relief

Defendant City Center alternatively moves for relief on equitable, non-statutory grounds:

As explained in Rappleyea, “ ‘[t]o set aside a [default] judgment based upon extrinsic mistake one must satisfy three elements. First, the defaulted party must demonstrate that it has a meritorious case. Second[ ], the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Last[ ], the moving party must demonstrate diligence in seeking to set aside the default once ... discovered.’ ” [Citations omitted].

(Bae v. T.D. Service Co. of Arizona (2016) 245 Cal.App.4th 89, 100.) For the reasons discussed above, Defendant City Center has demosntrated that it failed to timely respond to this action due to extrinsic mistake, i.e., improper service/lack of notice of the Summons and Complaint. Defendant City Center has also shown diligence in seeking to set aside the default and in attaching the proposed Answer, made a showing of a meritorious defense.

Defendant City Center, therefore, is also entitled to equitable relief from the entry of default and default judgment.

Conclusion

Defendant City Center, Inc.’s Motion to Vacate Default and Default Judgment is GRANTED.

Court clerk to give notice.

Case Number: 19STLC09190    Hearing Date: September 03, 2020    Dept: 26

MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT

(CCP §§ 473(b), 473(d), 473.5)

TENTATIVE RULING:

Defendant City Center, Inc.’s Motion to Vacate Default and Default Judgment is GRANTED.

ANALYSIS:

Plaintiff State Farm Mutual Automobile Insurance Company (“Plaintiff”) filed the instant action for automobile subrogation against Defendants Pedro Nunez (“Defendant Nunez”) and City Center Parking, Inc. (“Defendant City Center”) on October 4, 2019. Following the failure to file a responsive pleading, the court entered default against Defendant City Center on January 2, 2020.

On March 10, 2020, Plaintiff dismissed the Complaint against Defendant Nunez. On June 18, 2020, the Court entered default judgment against Defendant City Center. Defendant City Center filed the instant Motion to Vacate Default and Default Judgment on July 1, 2020. Plaintiff filed its opposition on August 24, 2020.

Discussion

Defendant City Center moves for relief from the default judgment pursuant to Code of Civil Procedure, section 473, subdivision (b), section 473, subdivision (d) and section 473.5. Defendant City Center also moves on equitable grounds. The Court will address each basis for relief below.

Code of Civil Procedure section 473(b)

Under Code of Civil Procedure, section 473, subdivision (b) an application for relief must be made no more than six months after entry of the order from which relief is sought and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) The motion is brought pursuant to discretionary relief prong of section 473, subdivision (b) for Defendant’s own mistake, inadvertence, surprise or neglect. Finally, the Motion must be accompanied by a copy of the moving defendant’s responsive pleading.

The proof of service of the Summons and Complaint states substitute service of the papers was accomplished on Defendant City Center’s agent by leaving the papers with the person apparently in charge of the office, Janet Kurtin, on October 18, 2019. (Proof of Service, filed 10/29/29, ¶¶3-5.) Thereafter, the papers were mailed to the same office on October 21, 2019. (Id. at Decl. of Mailing.)

Defendant City Center must show that default was entered due to its surprise, mistake, inadvertence or excusable neglect. In support of the Motion, Defendant City Center submits a declaration explaining Kurtin was not the person normally in charge of its agent’s office and that she has no recollection of being handed legal papers for this action or transmitting such papers to Defendant City Center’s agent for service of process, Somme Sahab. (Motion, Kurtin Decl., ¶¶2-3.) Kurtin further declares that more than a dozen people work at the office and she is clerical worker who was never authorized to receive service of process. (Ibid.) If Kurtin had been given legal papers, she declares, she would have placed them in the case file maintained in the office. (Ibid.) However, no such papers have been located in the case file. (Id. at ¶3.)

Defendant City Center’s agent, Somme Sahab, states that he did not receive the request for entry of default and only became aware of the action upon receipt of the request for court judgment in the mail in late June, 2020. (Motion, Sahab Decl., ¶¶3-4.)

This evidence demonstrates that Defendant City Center was unaware of the initial service of the Summons and Complaint and the default and default judgment were due to its surprise or inadvertence. It further shows the Motion was promptly filed upon Sahab learning of this action. Finally, a copy of Defendant City Center’s proposed Answer is attached to the Motion. (Motion, Exh. G.) Defendant City Center, therefore, has satisfied the requirements for relief under Code of Civil Procedure section 473, subdivision (b).

Code of Civil Procedure section 473.5

The request to vacate the default and default judgment is also brought pursuant to Code of Civil Procedure section 473.5, subdivision (a), which states:

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.

(Code Civ. Proc., § 473.5, subd. (a).) As discussed above, the Motion was timely brought soon after Defendant City Center’s receipt of the Request for Default Judgment. Also as discussed above, the supporting declarations demonstrate that Defendant City Center did not have actual notice of the action until after entry of default and the week before entry of default judgment. Finally, the supporting declaration of Somme Sahab states that Defendant City Center’s failure to respond to the Complaint was not the result of avoidance of service or inexcusable neglect. (Motion, Sahab Decl., ¶3.) The Court finds Sahab’s declaration credible when it states Defendant City Center has at all times been dealing with Plaintiff regarding the claim at issue in this action and that Defendant would have timely contested the action if aware of the Complaint. (Id. at ¶¶3-6.)

Defendant City Center, therefore, has also satisfied the requirements for relief under Code of Civil Procedure section 473.5.

Code of Civil Procedure section 473(d)

The request to vacate the default and default judgment is also brought pursuant to Code of Civil Procedure section 473, subdivision (d), under which “[t]he court may . . . set aside any void judgment or order.” (Code Civ. Proc., § 473, subd. (d).) In County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1229, the Court of Appeal explained:

[W]here it is shown that there has been a complete failure of service of process upon a defendant, he generally has no duty to take affirmative action to preserve his right to challenge the judgment or order even if he later obtains actual knowledge of it because “[w]hat is initially void is ever void and life may not be breathed into it by lapse of

time.” (Morgan, supra, 105 Cal.App.2d at p. 731, 234 P.2d 319.) Consequently under such circumstances, “neither laches nor the ordinary statutes of limitation may be invoked as a defense” against an action or proceeding to vacate such a judgment or order. (Id. at p. 732, 234 P.2d 319.) And, where evidence is admitted without objection that shows the existence of the invalidity of a judgment or order valid on its face, “it is the duty of the court to declare the judgment or order void.” (Thompson v. Cook (1942) 20 Cal.2d 564, 569, 127 P.2d 909 (Cook ).)

(County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215.) There being no deadline to bring a motion under Code of Civil Procedure section 473, subdivision (d), Defendant City Center’s request for relief under this statute is timely no matter when it was filed and served.

Defendant City Center must show that service of the Summons and Complaint did not comply with the statutory requirements. The proof of substitute service filed on October 29, 2019 is attested to by a registered process server and therefore entitled to a presumption of validity. (Cal. Evid. Code, § 647.) It states that substitute service of the papers was accomplished on Defendant City Center’s agent by leaving the papers with the person apparently in charge of the office, Janet Kurtin, on October 18, 2019. (Proof of Service, filed 10/29/29, ¶¶3-5.) Thereafter, the papers were mailed to the same office on October 21, 2019. (Id., Decl. of Mailing.)

The declarations of Kurtin and Sahab in opposition dispute that Kurtin was the person “apparently in charge of the office” because she was a clerical worker, not the manager or agent for service of process. (Motion, Kurtin Decl., ¶2; Sahab Decl., ¶2.) This evidence is sufficient to overcome the statement in the proof of service that Kurtin was apparently in charge of the office. In opposition, Plaintiff offers no explanation as to why the process server designated Kurtin as the person apparently in charge of the office when there were more than a dozen other people also working there. (See Motion, Kurtin Decl., ¶2.) In fact, Plaintiff’s opposition is not supported by any evidence, let alone evidence sufficient to demonstrate service of the Summons and Complaint in substantial compliance with the statutory requirements.

As Defendant City Center’s evidence demonstrates failure of service of process, the Court finds it is also entitled to relief from entry of default and default judgment under Civil Code section 473, subdivision (d).

Equitable Relief

Defendant City Center alternatively moves for relief on equitable, non-statutory grounds:

As explained in Rappleyea, “ ‘[t]o set aside a [default] judgment based upon extrinsic mistake one must satisfy three elements. First, the defaulted party must demonstrate that it has a meritorious case. Second[ ], the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Last[ ], the moving party must demonstrate diligence in seeking to set aside the default once ... discovered.’ ” [Citations omitted].

(Bae v. T.D. Service Co. of Arizona (2016) 245 Cal.App.4th 89, 100.) For the reasons discussed above, Defendant City Center has demosntrated that it failed to timely respond to this action due to extrinsic mistake, i.e., improper service/lack of notice of the Summons and Complaint. Defendant City Center has also shown diligence in seeking to set aside the default and in attaching the proposed Answer, made a showing of a meritorious defense.

Defendant City Center, therefore, is also entitled to equitable relief from the entry of default and default judgment.

Conclusion

Defendant City Center, Inc.’s Motion to Vacate Default and Default Judgment is GRANTED.

Court clerk to give notice.