Case Name: Portfolio Recovery Associates, LLC v. Tran
Case No.: 1-13-CV-241911
Defendant Tran moves to set aside the entry of default entered on April 29, 2013, and to vacate a default judgment entered on May 2, 2013. Defendant argues that he was not served with a Summons, and therefore did not have actual notice of Plaintiff’s lawsuit until after Defendant received a notice of levy on June 5, 2014. Plaintiff opposes. Defendant has attached a proposed answer. (Tran Decl. Ex. B.)
Plaintiff has a proof of service of summons stating that Plaintiff effectuated personal service by personally serving the Summons to Defendant on March 6, 2013, at 108 Lime Blossom Blvd., San Jose, CA 95123 at 10:53 A.M. (Rumstedt Decl. Ex. 1.) The process server identified Defendant as a black-haired Asian male approximate 25-35 years old, between 5’8”-6’0” tall and weighing between 180-220 lbs. (Rumstedt Decl. ¶ 6.)
Defendant states that he was working at the time when personal service was given, and has provided time stamp cards that shows he was at work, and not at home, at 10:53 A.M. on March 6, 2013. (Tran Decl. Ex. A.) Defendant argues that, because he was not properly served, the judgment is void.
Plaintiff argues that the judgment is not void on its face, asserting that a review of the complaint, the orders, and the judgment, all appear normal. Plaintiff also argues that proof of service shows that Tran was personally served at his last known address at 108 Lime Blossom Blvd., San Jose, CA 95123. Plaintiff also argues that even if the process server served someone other than Defendant, Defendant still had notice because there were multiple snail mail messages sent to Defendant about the pending litigation. (Rumstedt Decl. Ex. 2-6.)
- Service was Improper
The court may, upon motion of the injured party, […] correct clerical mistakes in its judgments or orders as entered, […] and may […] set aside any void judgment or order. (Cal. Code Civ. Proc., § 473(d).) A default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. (Hearn v. Howard (2009) 177 Cal.App.4th 1193, p. 1200.) Compliance with the statutory procedures for service of process is essential to establish personal jurisdiction. (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, p. 1444.) The filing of a proof of service creates a rebuttable presumption that the service was proper. (Ibid. at p. 1441.) Under § 473(d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service. (Ellard v. Conway (2001) 94 Cal.App.4th 540, p. 544.) Section 473 empowers a trial court to set aside any judgment that is void as a matter of law because the summons and complaint were not properly served. (Brown v. Williams (2000) 78 Cal.App.4th 182, pp. 186-187, fn. 4.)
Plaintiff relies on Estate of McGuigan v. Connell (2000) 83 Cal.App.4th 639, 652, to assert “a valid judgment will not be aside merely because it was obtained by extrinsic fraud or mistake, in order to give the barren right to an adversary hearing. The [party seeking relief] must plead and prove that he has a meritorious case […] that […] would likely result in a judgment favorable to him. In Estate of McGuigan, the issue was whether a petition regarding escheating could be void because the appellant did not receive notice of the proceeding and thus the prior judgment was obtained by extrinsic fraud. (Ibid. at pp. 643-644.) The fraud in that case was that the respondent had knowledge of the appellant’s existence but did not mention it during the original proceeding. (Ibid.)
Defendant has rebutted the presumption that personal service was proper. Defendant’s evidence that he was at work during the time service was made shows that Defendant was not personally served, but rather someone else at his household. This evidence rebuts the presumption that the personal service was proper. Plaintiff’s argument that extrinsic evidence cannot be used to prove that a judgment was void on its face does not address the issue that the service, though valid on its face, is still void by matter of law. In fact, Plaintiff’s brief discusses that a judgment may be void in fact but valid on its face, but then discusses that the judgment must be void on its face. (Plain. Opp. p. 2.) Estate of McGuigan does not apply because that case did not involve the issue of whether a judgment is void by improper service, but whether it was void by extrinsic fraud. (See ibid., supra, 83 Cal.App.4th at pp. 643-644.) Therefore, the court finds that personal service did not occur on Defendant, and thus was improper.
- Actual Notice of Lawsuit
Plaintiff also argues that there was actual notice of the litigation because of letters that Plaintiff sent to Defendant’s residence about the debt and its collection. (Rumstedt Decl. Ex. 2-6.)
No California opinion has yet held that actual notice alone was enough to sustain service that did not comply with the statute. (Summers v. McClanahan (2006) 140 Cal.App.4th 403, pp. 414-415.) To adopt such a regime would effect a judicial repeal of California’s statutory law governing service of process. (Ibid. at p. 415.)
The fact that Plaintiff had actual notice does not cure the deficiency in service. There was improper service, and that is enough to void a default judgment.
Therefore, the motion to vacate the default judgment is GRANTED. Defendant is ordered to file the proposed answer within ten days of notice.
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