2013-00147530-CL-CL

Cach LLC vs. Srdjan N Drndak

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

Filed By: Drndak, Srdjan N.

Defendant Drndak’s motion to set aside default pursuant to Code of Civil Procedure
§473(b), §473(d) and/or §473.5 and to quash service of summons is GRANTED, as
follows.

Opposing counsel is admonished for failing to comply with CRC Rule 3.1110(b)(3)-(4).

At the outset, the Court notes that on 3/18/2014 defendant Drndak’s prior motion to
quash service of summons and to set aside entry of default and default judgment was
denied on the grounds that defendant’s evidence relating to the lack of valid personal
service was not credible and that plaintiff’s own evidence in support of valid personal
service was credible. Among other things, the Court explained that Expedia travel itinerary which defendant served but did not file was not considered but even if it were,
it was insufficient to establish that defendant was out of the country when the
purported service occurred whereas a copy of defendant’s stamped passport, a plane
ticket or boarding pass, evidence of payment for such a ticket or evidence of a
purchase in Europe might have been persuasive.

Defendant now moves for relief from default and default judgment should be granted
because plaintiff’s purported service of the summons and complaint on 8/11/2013 at
4030 McClain Way in Carmichael did not occur. More specifically, defendant contends
he did not reside at that address in August 2013 and he was out of the country on
8/11/2013. As support for his claims, defendant submits (1) a written statement from
the landlord for the Heritage Oaks Apartments located at 4030 McClain Way which
appears to indicate defendant vacated his apartment at this address in or about
September 2009, long before the purported service of process in 2013; (2) two SMUD
bills issued on 7/30/2013 and 8/28/2013 (around the time of the purported service)
which appears to indicate that defendant was during this period residing in an
apartment located at 2950 Marconi Avenue in Sacramento; and (3) a copy of
defendant’s United States passport which appears to contain various entry and exit
stamps dated between 7/29/2013 and 9/4/2013. he did not reside at the service
address at the time of service. He has also filed a SMUD bill addressed to him at an
address other than the service address.

Plaintiff opposes on various grounds including that the present motion is essentially a
motion to reconsider the 3/18/2014 ruling mentioned above and that the Court
previously found plaintiff demonstrated proper service of the summons and complaint
on 8/11/2013.

First, while the present motion certainly bears similarity to defendant’s earlier motion, it
is brought on different grounds and pursuant to different statutory authority. Therefore,
the present motion is not fairly characterized as a motion to reconsider the prior ruling
but even if it were, the Court finds that reconsideration would be warranted under
these circumstances because refusal to reconsider the prior ruling would effectively
leave defendant without a means to challenge the validity of the default and default
judgment previously entered against him.

Turning to the merits of the present motion, the Court notes that plaintiff’s proof of
service may give rise to a “presumption” of valid service but 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.)

Here, plaintiff has failed to satisfy its burden of showing valid personal service of
summons by a preponderance of the evidence. Based on the present record, this
Court is unable to find it is more likely than not that defendant was actually served with
the summons and complaint on 8/11/2013 at 4030 McClain Way. Instead, the
documents now submitted by defendant persuasively establish that (1) he vacated his
apartment at 4030 McClain Way in August 2009, (2) he resided at 2950 Marconi
Avenue in July and August 2013 and (3) he was not in the United States in August
2013. Thus, this Court concludes it is more likely than not that plaintiff failed to
properly serve defendant with the summons and complaint on 8/11/2013 at 4030
McClain Way.

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 either the default or the default judgment entered against defendant on 11/4/2013.
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 Drndak pursuant to Code of Civil Procedure §473(d) and §473.5 and also to
quash the purported service of summons and complaint in August 2013.

Defendant Drndak 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.)