2007-00882858-CL-CL

Asset Acceptance LLC vs. Artnecia C Ramirez

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

Filed By:  Ramirez, Artnecia

Defendant Ramirez’s motion to set aside default and default judgment pursuant to
Code of Civil Procedure §473(d) and §473.5 is UNOPPOSED and is GRANTED, as
follows.

Defendant Ramirez moves to set aside the default and the default judgment entered
against her on 8/18/2008 on the ground that she was never properly served with the
summons and complaint in this action.  Specifically, defendant claims that she was
never personally served with the summons and complaint and that she could not have
been served at the time stated in the proof of service because she lives in a gated
community and would not have been home from work.  Finally, defendant insists she
was unaware that she had been sued until October 2013, when her employer notified
her of a wage garnishment order.

Plaintiff filed no (timely) opposition, which is construed as a concession of the merits of
defendant’s motion for relief.

At the outset, the Court notes that while plaintiff’s filing of its proof of service gives rise
to a “presumption” of valid service, this evidence is not conclusive.  Instead, 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.)
In the present case, plaintiff has filed no opposition and therefore has presented no
evidence (other than the proof of service) to establish valid service of process on
defendant.  In other words, plaintiff has failed to satisfy its burden of showing by a
preponderance of the evidence valid personal service of summons, a clear
prerequisite for a valid default and default judgment.

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
entered against defendant on 8/18/2008 pursuant to Code of Civil Procedure §473.5
and also to quash the purported service of summons and complaint in January 2008.

Defendant Ramirez 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.)