2008-00010385-CL-CL

Beneficial California Inc vs. Calvin M Cooper

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

Filed By: Cooper, Calvin M.

Defendant Cooper’s motion to set aside default and default judgment pursuant to Code
of Civil Procedure §473(d) is GRANTED, as follows.

Defendant Cooper moves to set aside the default and default judgment entered
against him in October 2008 on the ground that he was never properly served with the
summons and complaint. Specifically, defendant claims that he himself was never
served and that while the proof of service indicates his wife was sub-served in June
2008, it was not actually his wife who was sub-served but rather defendant’s 17 year
old daughter who then never notified defendant of such the purported substitute
service. Defendant further insists he was unaware of the entry of default and default
judgment until January 2014 when he attempting to buy a house and discovered
plaintiff’s judgment lien against him. The present motion was filed in March 2014.

Plaintiff opposes the motion, arguing that defendant can be validly served with the
summons and complaint via substitute service and that defendant failed to establish he
did not have actual notice of this lawsuit. The opposition also contends that defendant
did not file this motion within a reasonable time as required under Code of Civil
Procedure §473(b) (even though this motion was not brought under that subdivision
but rather under §473(d), which has no such limitation) because judgment was entered
several years ago. Finally, plaintiff insists that defendant failed to provide a
satisfactory excuse for setting aside the judgment at this time.

At the outset, the Court notes that the sole evidence offered by plaintiff pertaining to
the service of the summons and complaint on defendant is the proof of (substitute)
service originally filed in June 2008. Although plaintiff’s proof of service may give rise
to a “presumption” of valid service, Summers v. McClanahan (2006) 140 Cal.App.4th
403 expressly places the ultimate burden of proof on this critical issue on plaintiff when
there is a challenge to the validity of service. Relying on Dill v. Berquist Construction
Co., Inc. (1994) 24 Cal.App.4th 1426, the Summers Court stated:

“When a defendant challenges the court’s personal jurisdiction on the ground of
improper service of process, ‘the burden is on the plaintiff to prove the existence
of jurisdiction by proving, inter alia, the facts requisite to an effective service.’” (
Summers, at 413.)

Moreover, California law requires that plaintiff prove valid service and personal
jurisdiction by a preponderance of the evidence. (Floveyer Intl., Ltd. v. Superior Court
(Schick Tube-Veyor Corp. (1997) 59 Cal.App.4th 789, 793-794.)

However, plaintiff has failed to satisfy its burden of showing valid personal service of
summons by a preponderance of the evidence since the 2008 proof of service is in the
Court’s view only enough to show that it is just as likely as it is unlikely that defendant
was properly (sub-)served with the summons and complaint in 2008 and/or was given
actual notice of the present suit. In fact, based on the present record and particularly
in light of the evidence offered by defendant in support of his motion (consisting of
declarations by him, his wife and his daughter), this Court concludes that it is more
likely than not that plaintiff failed to properly effect substitute service on defendant and
that defendant did not receive actual notice of this lawsuit. Since plaintiff has failed to
meet its burden of proving by a preponderance of the evidence that there was valid
service of summons on defendant, there is no legal basis for the 2008 default and
default judgment against defendant.

For these reasons and coupled with the well established policy favoring trial on the
merits, the Court finds good cause to set aside the default and default judgment
previously entered against defendant Cooper pursuant to Code of Civil Procedure
§473(d) and §473.5 and also to quash the purported service of summons and
complaint in June 2008.

Defendant Cooper need not respond to the complaint unless and until valid service
summons and complaint is completed.

This minute order is effective immediately. No formal order or other notice is required.
(Code Civ. Proc. §1019.5; CRC Rule 3.1312.)