18-UDL-00109 ZAMEER AZAM VS. CHARISSE SMITH

ZAMEER AZAM N. PAIGE SIMMONS CHARISSE SMITH JASON HAIN

MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT BY CHARISSE SMITH TENTATIVE RULING:

The Motion of Defendant Charisse Smith (“Defendant”) to Vacate Default and Default Judgment is GRANTED.

Code of Civil Procedure section 473(d) provides that the Court may set aside any void judgment. Where there has been a lack of or invalid service of summons, the judgment violates due process of law, is void and can be set aside. (Peralta v. Heights Med. Ctr., Inc. (1988) 485 U.S. 80, 8485.)

The Proof of Service indicates that Lee Gatson (“Gatson”) personally served Defendant with the Summons and Complaint. (See Proof of Service filed February 13, 2018.) Where service is carried out by a registered process server, the proof of service establishes a presumption affecting the burden of producing evidence of the facts stated in the process server’s return. (See Evid. Code §647; Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 14271428.) Since Gatson is not a registered process server, no presumption applies here regarding service.

Defendant’s evidence supports that she was never served with the Complaint. (Defendant’s Decl., ¶4.) In contrast, Plaintiff’s declaration states only that Gatson advised Plaintiff he served Defendant. (See P’s Decl. ¶¶13-14.) This is inadmissible hearsay regarding whether Defendant was properly served. Plaintiff also has not provided any declaration from Gatson regarding service. Accordingly, Plaintiff has not presented any admissible evidence to dispute Defendant’s contention that she was never served.

The Default and Default Judgment entered on February 13, 2018 are hereby SET ASIDE and VACATED.

Defendant is to file and serve her answer within five days of the date of the Order.

In making this ruling, the Court did not consider Defendant’s Supplemental Declaration filed on March 21, 2018. (See Cal. Rules of Court Rule 3.1300(d) [“If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.”].) The Court’s Order Shortening Time expressly stated that reply was waived.