2013-00147231-CL-CL

Persolve LLC vs. Haniya Hunt

Nature of Proceeding: Motion to Set Aside

Filed By: Hunt, Haniya

Defendant Hainya Hunt’s motion to set aside default judgment and to quash service of
summons is granted.

Defendant moves to set aside the default and default judgment entered in this action
pursuant to CCP § 473(d), § 473.5 and § 473(b) on the basis that the summons and
complaint were served by substitute service at an address where she did not reside.
Defendant’s declaration shows that although the proof of service shows she was
served by substitute service in July 2013 at 9038 Reliance Court in Sacramento
(apparently her mother’s residence) by leaving the papers with her brother Ryan Hunt,
she resided at 1574 Columbus Road in West Sacramento at the time. (Def.’s Decl. ¶¶
4-5.) She indicates that she did not learn about the lawsuit until her mother gave her
some mail she received for her in late January or early February of this year. (Id. ¶ 1.)
She also states that her brother Ryan Hunt is mentally disabled and thus is not
surprised that she never received anything left with him. (Id. ¶ 7.)

Defendant’s showing is sufficient to show that the default and default judgment are
void. “The Court may,…on motion of either party after notice to the other party, set
aside any void judgment or order.” (CCP § 473(d).) Here, Defendant has shown that
the order entering her default, though facially valid, is void for lack of proper service as
she did not reside at the address at which substitute service was made. This is a
proper challenge pursuant to CCP § 473(d). (Trackman v. Kenney (2010) 187
th
Cal.App.4 175, 180-181.) Plaintiff argues that Defendant did not show that service
was improper because she did not show that the 9038 Reliance Court address was not
her “usual mailing address” and CCP § 451.20(b) allows substitute service at a “usual
mailing address.” The Court however can reasonably infer from Defendant’s
declaration stating that she did not reside at the 9038 Reliance Court address to mean
that this was also not her “usual mailing address” and that her “usual mailing address”
was the 1574 Columbus Road, West Sacramento address at which she said she
resided at the time of service. This inference is supported by the fact that Defendant
listed the 1574 Columbus Road address on the caption of the instant motion as her
address. The inference is also consistent with what this Court has reiterated
numerous times regarding this state’s “policy that cases should be decided on their
merits.” (Smeltzley v. Nicholson Mfg. Co. (1977) 18 Cal.3d 932, 936.) In any event,
Defendant clarified in her reply declaration that her “usual mailing address” at the time
of the service was the 1574 Columbus Road, West Sacramento address. As a result,
Defendant has shown that relief is proper pursuant to CCP § 473(d).
In addition, even assuming service was proper, Defendant has also shown that she is
entitled to relief pursuant to CCP § 473.5. Pursuant to CCP § 473.5, a default may be
set aside where service of the summons did not result in actual notice to in time to
appear and defend the action and that the lack of notice was not created by avoiding
service or inexcusable neglect. (CCP § 473.5(a), (b).) ” ‘[A]ctual notice’ in section
473.5 ‘means genuine knowledge of the party litigant . . . .’ [Citation.]” ( Tunis v. Barrow
(1986) 184 Cal. App. 3d 1069, 1077.) Defendant’s declaration shows that she did not
receive notice of the instant lawsuit until late January or February of this year by which
time default and default judgment had already been entered. Further, despite
Plaintiff’s conclusory assertion to the contrary, Defendant has shown that the lack of
notice was not the result of inexcusable neglect as she has shown that she did not
reside where the summons and complaint were left and the papers were left with her
mentally disabled brother whose condition makes him “incredibly unreliable” in
delivering messages. (Def.’s Decl. ¶¶ 2, 5-7.) As a result relief is also proper pursuant
to CCP § 473.5.

The Court need not address whether relief is also available pursuant to CCP § 473(b).
The motion to set aside the default and default judgment is granted.

Having set aside the default, the Court can proceed to consider Defendant’s motion to
quash. As already discussed above, the summons and complaint were left at a
residence where Defendant did not reside and which was not her “usual mailing
address.” Thus substitute service was improper under CCP § 415.20(b). Once a
defendant challenges the court’s personal jurisdiction on the ground of improper
service of process the burden is on plaintiff to prove the facts necessary to an effective
th
service. (Summers v. McClanahan (2006) 140 Cal.App.4 403, 413.) Plaintiff has
provided no evidence to counter Defendant’s claim that she was not properly served
by substitute service. The summons and complaint are hereby quashed.

Plaintiff’s request for attorneys’ fees incurred in opposing the motion is denied.
Plaintiff cites no authority for an award of fees.

As a result, the default and default judgment entered in this action on January 10,
2014 are set aside. In addition, service of summons and complaint are hereby
quashed. Defendant need not file the proposed answer attached to her motion given
that the complaint was never properly served and she has no duty to respond to the
complaint at this time.

The minute order is effective immediately. No formal order pursuant to CRC rule
3.1312 or other notice is required.