JANE DOE VS MARQUIS JONES

Tentative Rulings

Case Number: BC646265    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.