Case Number: EC061587    Hearing Date: August 01, 2014    Dept: NCD

TENTATIVE RULING (8-1-14)
#5
EC 061587
F&R PRODUCE, LC v. UNITED ENTERPRISES CORP.

Defendant Leon Rozhansky’s Motion to Set Aside Default and Default Judgment

TENTATIVE:
The Motion to Set Aside Default is GRANTED pursuant to CCP § 473.5(d). The default and default judgment are set aside as void, as based on improper substituted service.

Ten days to answer.

FACTUAL BACKGROUND:
This is an action to collect sums allegedly due under a series of loans made by plaintiff F&R Produce to defendant United Enterprises, which were allegedly personally guaranteed by defendant Leon Rozhansky.

On January 15, 2014, defendant Rozhansky’s default was entered based on a proof of service showing substituted service on defendant at his home by a registered process server who left the papers with Jane Doe, described as a 40 years old Caucasian female, weighing 140 pounds, standing 5’6’ tall, with black hair and brown eyes. Judgment by default by the court was entered on March 17, 2014, against both defendants, in the sum of $95,999.35.

ANALYSIS:
Defendant argues that the default and default judgment must be set aside under
CCP § 473(b).

The declaration submitted with the papers indicates that defendant did not file a timely response to the complaint because the papers were left on the doorstep when defendant was not home, he is unfamiliar with the American judicial system and can speak only conversational and limited English, believed the documents were only a threat to sue if he didn’t negotiate, and looked on the internet and read that to be official, the papers had to be given to him in person. [Rozhansky Decl., paras. 1-6].

It also appears from the papers that substituted service was not effectively made on defendant if the papers were in fact not left with Jane Doe, but were left on a door step. The court may at any time upon motion of the injured party or on its own motion, set aside any void judgment. CCP § 473(d). A void judgment includes one based on improper service of summons. See Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 313.

Here, defendant presents a declaration stating that “Someone left the papers on my door step when I wasn’t home,” and “I found the papers when I came home.” [Paras. 1, 2].

The proof of service shows that the summons and complaint were served by a registered process server.

Under Evidence Code section 647, the return of a registered process server “establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.”

Where the parties’ evidence conflict on the jurisdictional facts, the trial court must determine credibility. Its decision will not be disturbed on appeal as long as it is supported by substantial evidence. Evangelize China Fellowship, Inc. v. Evangelize China Fellowship (1983) 146Cal.App.3d 440, 444.

The opposition argues that defendant’s motion should be denied because defendant has failed to establish any mistake, surprise or excusable neglect justifying ignoring this lawsuit. The argument is that defendant was aware of plaintiff’s claims and chose to ignore the lawsuit, but has only woken up now that there has been an effort to levy on his vehicle to collect the judgment.

Plaintiff, has come forward with no evidence refuting defendant’s sworn statement, such as a declaration from the process server describing his encounter with Jane Doe, or a showing that defendant is married to a person matching the service description.