2014-00167211-CU-PO

Vassie Brown vs. Leh-Ren Shieh

Nature of Proceeding: Motion to Set Aside Default and Default Judgment

Filed By: Shieh, Leh-Ren

Defendant Leh-Ren Shieh’s motion to set aside default and default judgment is unopposed and is granted.

Defendant, appearing in propria persona, contends that the default judgment entered should be set aside on the grounds that (1) Defendant was never properly served with the summons and complaint in this matter; and, (2) Plaintiffs never served a Statement of Damages and therefore the Court lacks jurisdiction to enter judgment.

Examination of the Court’s register of actions in this case reveals that Defendant’s first argument is meritorious. First, the docket reflects that on July 27, 2015, Plaintiffs submitted an Application requesting an Order permitting them to serve the Summons and Complaint via publication. The Application wasrejected and returned to Plaintiffs on or about August 3, 2015, on the grounds on insufficient showing of cause and failure to establish that Defendant could not be served in another manner specified by statute, including attempting to serve Defendant by mail with notice and acknowledgement of receipt at a potentially valid address.

Thereafter, on March 14, 2016, Plaintiffs filed a Proof of Service of Summons by mail. The address where the Summons and Complaint were served was 8053 Arroyo Vista Drive, Sacramento, California; this is the same address Defendant uses in filing the instant motion. Judicial Counsel Form POS-010, which Plaintiffs used, requires, as relevant here, the party serving by mail to attest to the following: the date the summons was served, the city where it was served, and that it was served with two copies of the Notice and Acknowledgement of Receipt and a postage-paid return

envelope addressed to Plaintiffs’ counsel. The complete Notice and Acknowledge of Receipt is required to be attached to Form POS-010 when it is filed with the Court. Plaintiffs checked the box next to this course of action, but failed to attach any completed Notice and Acknowledgement of Receipt. For reasons unknown, Plaintiffs also checked the immediate subsequent box (service “by other means”) and stated that service had been accomplished via certified mail with return receipt, with a copy of the signed return receipt confirmation attached; although required by the form to cite an authorizing CCP section, Plaintiffs did not do so. There is a copy of a signed U.S. Postal Service return receipt attached to the Proof of Service.

Service of summons by mail is only deemed completeon the date that a written acknowledgement of receipt of summons is executed. (CCP § 415.30(c) [emphasis added].) Where the person “to whom a copy of the summons and of the complaint are mailed … fails to complete and return the acknowledgement form … within 20 days from the date of such mailing, the party to whom the summons was mailed shall be liable for reasonable expenses thereafter incurred in serving or attempting to serve the party by another method permitted by this chapter[.]” (CCP § 415.30(d).)

According to Defendant’s declaration, Defendant admits to receiving a piece of certified mail at some point, but did not understand it was a lawsuit. (Shieh Decl. ¶ 2.) Defendant does not recall receiving any envelope or documents to return to Plaintiffs’ attorney, as required by Form POS-010, and did not mail anything back to Plaintiffs’ attorney. There is no evidence that any other type or means of service on Defendant was attempted.

Here, the Court believes that Defendant’s arguments regarding lack of proper service of the Summons and Complaint are valid. Indeed, there is no evidence on the Court’s docket reflecting Code-compliant service of the Summons and Complaint. In addition, addressing Defendant’s second argument, while Plaintiffs filed a statement of damages with the Court, there is no proof of service reflecting service on Defendant. Procedural due process requires that a defaulting defendant be advised of the amount of judgment that may be entered if he or she defaults. Since no statement of damages setting forth such amount was ever served on Defendant, any judgment entered would violated Defendant’s due process rights and would be void. (SeeBecker v. SPV Constr. Co., Inc. (1980) 27 Cal.3d 489.)

In sum, since Defendant was never properly served, the Court never acquired jurisdiction over Defendant in the first instance. Accordingly, based on the facts now presented by Defendant, the Court had no jurisdiction to enter the default and default judgment.

In light of the foregoing, and the lack of opposition to Defendant’s motion, the motion to set aside is GRANTED. The Entry of Default is ordered VACATED.