JANE DOE VS MARQUIS JONES

Tentative Rulings

Case Number: ****6265 Hearing Date: July 6, 2022 Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On January 9, 2017, plaintiff Jane Doe filed this action against defendant Marquis Jones (“Defendant”) for battery, negligence, intentional and negligent infliction of emotional distress, and intentional and negligent misrepresentation. Default was entered on October 5, 2018, and a default judgment was entered on May 28, 2019.

On March 6, 2020, the Honorable Laura A. Seigle denied Defendant’s motion to set aside the default judgment. The motion was made pursuant to Code of Civil Procedure sections 473.5 and 473(d) and was accompanied by a barebones declaration.

On April 1, 2021, Defendant filed another motion to set aside the default judgment on the same grounds. This time, Defendant submitted a declaration with two letters from his employers dated March 5, 2020.

Code of Civil Procedure section 473.5

Where a service of summons has not resulted in actual notice to a party in time to defend the action, the party may move the court to set aside default and default judgment. (Code Civ. Proc., 473.5, subd. (a).) 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. (Ibid.) The party must act with diligence upon learning of the judgment. (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180; Code Civ. Proc., 473.5, subd. (a).)

Plaintiff opposes Defendant’s motion as untimely. Default was entered against Defendant on May 24, 2017, and default judgment was entered on May 28, 2019. A conformed copy of the judgment was mailed to Defendant on May 31, 2019. Therefore, Defendant had 180 days from service of the copy of the judgment to file the instant motion. That deadline was November 27, 2019. Accordingly, Defendant’s motion, which was filed on April 1, 2021, is untimely.

Code of Civil Procedure section 473(d)

“The 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).) “‘A default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.’ Under 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.” (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1200, citations omitted.) Relief on this basis generally requires consideration of extrinsic evidence. (Trackman, supra, 187 Cal.App.4th at p. 180.)

Here, Defendant declares that Plaintiff’s substituted service was “to an unknown individual not either an employee nor family member at the Los Angeles Unified School District Headquarters and not to Dymally High School where the defendant actually worked.” (Jones Decl., 2.) Defendant submits a letter dated March 5, 2020, from Simone Charles, a principal at Los Angeles Unified School District. The letterhead identifies Ms. Charles as the principal of Walt Whitman High School. Ms. Charles states that Defendant worked for her at Mervyn M. Dymally High School, located at 8800 San Pedro Street, from June 2016 to June 2019. Another letter from Donald Moorer dated March 5, 2020, identified as the Principal of Boys Academic Leadership Academy, states that from June 2019 to the present (March 5, 2020), Defendant worked for him as a counselor.

Defendant declares he was never personally served. (Jones Decl., 2.) The proof of service of summons, filed on March 13, 2017, states that Defendant was personally served at 333 S. Beaudry Avenue in Los Angeles, California, on March 3, 2017, at 8:57 a.m. Plaintiff’s counsel in Plaintiff’s opposition asserts that Defendant was served by “personal service at his place of employment.” (Opposition, 2:15.) That address appears to be the headquarters of the LAUSD, Defendant’s employer, but the letters attached to Defendant’s declaration seek to prove that Defendant did not work at the S. Beaudry Avenue address on March 3, 2017. The Court notes that Defendant has submitted no declaration stating Defendant’s place of employment on March 3, 2017, a fact presumably ascertainable from the LAUSD’s official records. Moreover, whether Defendant was assigned to the LAUSD headquarters on March 3, 2017, as his place of employment, it is not inconceivable that he would have had some employment-related reason to be at that address on the date and at the time he was served according to the proof of service. Defendant submits no evidence regarding his whereabouts on March 3, 2017, to show that he was not, in fact, at 333 S. Beaudry Avenue.

As the Court previously wrote in its March 6, 2020, order, the filed proof of service creates a rebuttal presumption of proper service under Evidence Code section 647. Defendant has not provided sufficient evidence showing he was not personally served on March 3, 2017. His brief declaration that he was not served with no information as to his actual whereabouts, coupled with unsworn statements of two LAUSD principals three years after the fact about his place of employment, but not his actual location at the time in question, are insufficient to rebut the presumption of proper service.

Accordingly, Defendant’s motion to set aside the default judgment is DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@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.

Case Number: ****6265    Hearing Date: March 06, 2020    Dept: 27

[TENTATIVE] ORDER RE: MOTION TO SET ASIDE DEFAULT JUDGMENT

On January 9, 2017, plaintiff Jane Doe filed this action against defendant Marquis Jones (“Defendant”) for battery, negligence, intentional and negligent infliction of emotional distress, and intentional and negligent misrepresentation. Default was entered in October 5, 2018, and the a default judgment was entered on May 28, 2019. Defendant moves to set aside the default judgment on grounds that he lacked actual notice, pursuant to Code of Civil Procedure section 473.5 and section 473, subdivision (d).

Where a service of summons has not resulted in actual notice to a party in time to defend the action, the party may move the court to set aside default and default judgment. (Code Civ. Proc., ; 473.5, subd. (a).) The motion must be made no later than two years after entry of default or 180 days after service of a written notice that default or default judgment has been entered. (Ibid.) The party must act with diligence upon learning of the judgment. (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180; Code Civ. Proc., ;473.5, subd. (a).) The party seeking to set aside must also submit a declaration that lack of actual notice was not caused by his or her avoidance of service or inexcusable neglect and a copy of the proposed answer, motion, or other pleading proposed to be filed in the action. (Code Civ. Proc., ; 473.5, subd. (b).)

“The 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).) “‘A default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.’ Under 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.” (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1200, citations omitted.) Relief on this basis generally requires consideration of extrinsic evidence. (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180.)

Filing a proof of service by a registered process server creates a rebuttable presumption that service was proper. (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; Evid. Code, ; 647 [“The return of a process server registered pursuant to . . . the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return”].) Proof of service of summons may be impeached by evidence that contradicts it. (City of Los Angeles v. Morgan (1951) 105 Cal.App.2d 726, 731.)

Defendant argues he was not personally served and the “substituted service was to an unknown individual not either an employee nor a family member.” (Jones Decl., ¶ 2.) The proof of service of summons filed on March 13, 2017, states that a registered process server personally served Defendant on March 3, 2017, at 8:57 a.m. at 333 S. Beaudry Avenue, Los Angeles CA 90017. Defendant is described as “African American Male 40 Yrs 6’02” 200 lbs. bald/shaved hair.”

The filed proof of service creates a rebuttable presumption of proper service. Defendant did not provide sufficient evidence showing he was not personally served or lacked actual notice. His declaration is too conclusory to rebut the presumption. On this record, the Court cannot find that Defendant was not personally served or lacked actual notice preventing him from defending the action.

Defendant’s motion is DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative.