Case Number: EC065100??? Hearing Date: November 18, 2016??? Dept: A
Video Symphony, LLC v Ryan
MOTION TO QUASH SERVICE OF SUMMONS AND TO SET ASIDE DEFAULT & DEFAULT JUDGMENT
Calendar: 15
Case No: EC065100
Date: 11/18/16
MP: Defendant, Michael Ryan
RP: Plaintiff, Video Symphony, LLC
RELIEF REQUESTED:
1. Order quashing the service of summons.
2. Set aside the default entered on August 1, 2016 and default judgment entered on August 23, 2016.
DISCUSSION:
This case arises from the Plaintiff?s claim that the Defendant is indebted to the Plaintiff for $25,848 based on an open book account. A default judgment was entered in favor of the Plaintiff on August 23, 2016.
This hearing concerns the request of the Defendant, Michael Ryan, to quash the service of summons and to set aside the default and default judgment entered against him. The Defendant argues that there are grounds to quash the service of summons and to set aside the default and default judgment because he was not properly served.
CCP section 418.10 authorizes the Court to quash the service of summons. Further, CCP section 473(d) authorizes the Court to set a void judgment or order. California is a jurisdiction where the original service of process, which confers personal 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. When a summons and complaint were not properly served, the Court may set aside the default as void. Brown v. Williams (2000) 78 Cal. App. 4th 182, 186 n4. Even though the defendant is the moving party, the plaintiff bears the burden of proof to demonstrate that the Court has personal jurisdiction. Mihlon v. Superior Court (1985) 169 Cal.App.3d 703, 710.
The Plaintiff filed a proof of service on July 25, 2016 to demonstrate that the Defendant, Michael Ryan, was served by personal service at 11544 Moorpark St., #8, North Hollywood, CA 91602 on May 15, 2016 at 7:56 am. The proof of service was completed by a registered process server, Daniel Tello. Under Evidence Code section 647, the return of a registered process server upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.
The Defendant, Michael Ryan, filed a declaration in which he states that he was never personally served. Mr. Ryan offers no facts that address the proof of service, e.g., facts rebutting the presumption that the registered process server delivered the papers to the Defendant at 7:56 am on May 15, 2016 at 11544 Moorpark St., #8, North Hollywood. Mr. Ryan does not state that the address is incorrect, that he was on vacation, or any facts to demonstrate that he was not present at 7:56 am on May 15, 2016 at the address identified in the proof of service. Mr. Ryan?s mere statement that he was not served is insufficient to constitute sufficient evidence to overcome the presumption created by Evidence Code section 647.
Therefore, the Court will deny the Defendant?s motion to quash the service of summons.
The Defendant also requested that the Court set aside the default and default judgment under CCP section 473.5 on the ground that he did not receive actual notice of the Complaint. CCP section 473.5 authorizes the Court to set aside a default and default judgment caused by the lack of actual notice to a party in time to defend against the action. Section 473.5(b) requires the motion to be accompanied by an affidavit showing under oath that the party’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. This requires the party to submit a declaration that includes the required facts. See e.g., Sakaguchi v. Sakaguchi (2009) 173 Cal. App. 4th 852, 861-862 (finding that the trial court did not abuse its discretion in denying a motion under section 473.5 because the party did not declare in his declaration that he lacked actual knowledge of the action and that any lack of knowledge was due to excusable neglect).
The Defendant, Michael Ryan, does not provide any facts to demonstrate that he was not avoiding service or that his neglect of the case was excusable. This is grounds to deny the request under section 473.5.
Further, Mr. Ryan states that he received the summons and complaint by mail on July 28, 2016, which was before the entry of default on August 1, 2016. This shows that Mr. Ryan had actual notice of the summons and complaint four days before the entry of default. Mr. Ryan offers no facts to demonstrate that this was insufficient time to make a response to the pleadings.
Finally, as discussed above, the Plaintiff provided evidence in the proof of service completed by the registered process server that establishes that the Defendant received notice when he was personally served with the summons and complaint on May 15, 2016. Although Mr. Ryan offers his statement that he was never served, this statement is insufficient to rebut the presumption of service because Mr. Ryan did not support it with any facts that rebut the facts in the proof of service.
Therefore, the Court will deny the Defendant?s motion to quash the service of summons and to set aside the default and default judgment.
RULING:
Deny motions.