SUPERSHUTTLE ONTARIO, INC. VS DAVID GONZALEZ, ET AL.

ANALYSIS:

On May 16, 2019, Plaintiff SuperShuttle Ontario, Inc. (“Plaintiff”) filed the instant action for motor vehicle negligence against Defendants David Gonzalez and Imelda Estrada (“Defendants”). When Defendants failed to file a responsive pleading, Plaintiff obtained entry of default and default judgment on October 15, 2019 and December 30, 2019, respectively.

On June 30, 2020, Defendants filed the instant Motion to Quash Service and Set Aside Default. Plaintiff filed an opposition on September 16, 2020.

Discussion

Defendants move to vacate the entry of default and default judgment for failure to serve the Summons and Complaint as required by statute. Although the Notice of Motion refers to Code of Civil Procedure section 473.5, the Motion itself relies on case law pertaining to Code of Civil Procedure section 473, subdivision (d). (Motion, p. 8:6-14 (citing MJS Enterprises, Inc. v. Superior Court (1984) 153 Cal.App.3d 555, 557.)

Code of Civil Procedure section 473, subdivision (d) states that “[t]he court 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).) “California is a jurisdiction where the original service of process, which confers jurisdiction, must conform to statutory requirements or all that follows is void.” (Honda Motor Co. v. Superior Court (1992) 10 Cal.App.4th 1043, 1048.) There is no time limit on when a void judgment can be challenged. (Deutsche Bank National Trust Co. v. Pyle (2017) 13 Cal.App.5th 513, 526 (citing Falahati v. Kondo (2005) 127 Cal.App.4th 823, 830; Code Civ. Proc., § 473, subd. (d).)

Defendants must demonstrate that service of the Summons and Complaint did not substantially comply with the statutory requirements, which can be shown by a failure of actual notice. (Ramos v. Homeward Residential, Inc. (2014) 223 Cal.App.4th 1434, 1442-1443.) The proofs of substitute service filed on September 12, 2019 are attested to by a registered process server, and therefore, are entitled to a presumption of validity. (Cal. Evid. Code, § 647.) The proofs states that following multiple attempts at personal service, the Summons and Complaint were left with a person named Zemi “Jane Doe” or “John Doe” who refused to give a last name. (Proofs of Service, file 9/12/20, ¶5.) The process server goes on to describe the person as male, Hispanic, 21+ years old, with brown hair, 5 feet 9 inches tall and 250+ pounds. (Proofs of Service, filed 9/12/19, ¶5.) The papers were left with this person at 9781 Indiana Avenue, Riverside, California on September 3, 2019. (Proofs of Service, filed 9/12/19, ¶¶4-5.)

Defendants submit declarations stating that they reside at the service address with Defendant Estrada’s minor son, Sammy Estrada. (Motion, Estrada Decl., ¶4; Gonzalez Decl., ¶4.) They attest that in September 2019, Sammy Estrada was 14 years old. (Motion, Estrada Decl., ¶4; Gonzalez Decl., ¶4.) Defendants also contend that they were unaware of this action until contacted by their insurer in June 2020. (Motion, Estrada Decl., ¶¶5-6; Gonzalez Decl., ¶¶5-6.) Defendants’ evidence is sufficient to overcome the presumption of service as set forth in the proofs of service and to shift the burden to Plaintiff to demonstrate service that substantially complies with the statutory requirements. Delivery of the Summons and Complaint to a minor does not substanially comply with the statutory requirements for obvious reasons. A minor cannot be trusted to understand the nature and import of legal documents and to communicate that information to Defendants.

Plaintiff’s opposition offers no evidence to demonstrate that the Summons and Complaint were handed to “a person at least 18 years of age” as required by Code of Civil Procedure section 415.20. Instead, Plaintiff’s counsel challenges Defendants’ credibility while arguing the process server is a disinterested nonparty. (Opp., Tapper Decl., ¶¶5-6.) Plaintiff’s counsel does provide evidence to dispute Defendants’ contention that they only received notice of this action in June 2020. Specifically, Plaintiff’s counsel has notes of two phone calls from Defendant Estrada regarding the action. (Id. at ¶3 and Exh. B.) In the first call on October 24, 2019, Defendant Estrada said she received an undescribed legal document and would obtain counsel. (Ibid.) The second call was on an unknown date after October 24, 2019 in which Defendant Estrada indicated she had obtained the Summons and Complaint. (Id. at ¶4 and Exh. B.)

While this evidence casts some doubt about when Defendants obtained actual notice of the action, it does not support proper service of the Summons and Complaint in a manner that substantially complies with the statutory requirements. Nothing in the phone calls from Defendant Estrada shows that Defendants were aware of this action prior to entry of default. The Court cannot find that Plaintiff’s attempt at service resulted in actual notice in time to defend the action. Therefore, Plaintiff has not demonstrated the service attempt substantially complied with the statutory requirements for substitute service. Without substantial compliance, all judicial processes that follows the attempt at service, including the entry of default and default judgment, is void. (Honda Motor Co. v. Superior Court (1992) 10 Cal.App.4th 1043, 1048.)

Finally, when a motion to quash is brought concurrently with a motion to vacate default, the court must rule on the motion to vacate first. (Steven M. Garber & Assocs. v Eskandarian (2007) 150 CA4th 813, 819 (holding that a defendant against whom a default has been entered is out of court and is not entitled to take any further affirmative steps in the action except for a motion for relief from the default).) Having determined the request to vacate default and default judgment should be granted because service of the Summons and Complaint did not substantially comply with the statutory requirements, the Court grants Defendants’ request to quash service of the Summons and Complaint.

Conclusion

Defendants David Gonzalez and Imelda Estrada’s Motion to Quash Service of the Summons and Complaint and to Vacate Entry of Default and Default Judgment is GRANTED.

Court clerk to give notice.