2013-00154544-CL-CL

KelKris Associates Inc vs. Marcell D Wilson

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

Filed By: Wilson, Marcell D.

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

Defendant Wilson moves to set aside the default and default judgment entered against
him in February 2014 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 he was served at his home on
12/30/2013, his employer has confirmed he was at work at the time service was
alleged made. Defendant further insists he was unaware of the entry of default and
default judgment until May 2014 when he received notice of a wage garnishment.

Plaintiff did not file any opposition.

At the outset, the Court notes that the sole evidence pertaining to the service of the
summons and complaint on defendant is the proof of service on file. 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, since plaintiff failed to file any opposition, it has failed to satisfy its burden of
showing valid personal service of summons by a preponderance of the evidence since
the 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 served with the summons and complaint. In
light of the evidence now offered by defendant in support of his motion (consisting of
his own declaration and a letter from his employer), this Court concludes that it is more
likely than not that plaintiff failed to properly effect personal 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 2014 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 Wilson pursuant to Code of Civil Procedure §473 (d) and §473.5 and also to quash the purported service of summons and complaint in
December 2013.

Defendant Wilson 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.)