Case Number: EC060790    Hearing Date: August 22, 2014    Dept: NCD

TENTATIVE RULING (8-22-14)
#4
EC 060790
LAIRD v. 762 WOODLAND DR. TRUST

Motion to Quash Service of Summons and Set Aside Default of Cross-Defendant Mark Acuff

TENTATIVE:
Motion to Set Aside Default is GRANTED pursuant to CCP section 473(d). Default entered on December 9, 2013 as to cross-defendant Mark Acuff is set aside as void, as based on improper service.

Five days to respond to the cross-complaint.

ANALYSIS:
Cross-defendant Mark Acuff seeks pursuant to CCP 473.5 to set aside the default entered against him on the ground he did not have actual notice of the matter in time to defend it.

It is not really clear why relief is sought under this section, which is usually invoked when proper service, such as service by publication, did not result in actual notice. Here, the declaration in support indicates that Acuff was never personally served with the cross-complaint as represented in the proof of service, as the address of service, 752 Woodland Drive, is a vacant lot next to 762 Woodland Drive, where plaintiff had a former residence, but which he had sold and moved away from in July of 2013, before the summons and complaint were purportedly served on October 13, 2013. [Acuff Decl., paras. 2, 3].

The declaration does not state that his lack of actual notice was not caused by avoidance of service or inexcusable neglect, as required under section 473.5(b), and there has been no copy of the answer, motion or other pleading proposed to be filed served or filed with the motion.

However, cross-defendant appears to be entitled to relief under CCP section 473(d), under which the court may, “on motion of either party after notice to the other party, set aside any void judgment or order.” CCP § 473(d). A default entered against a defendant who was not served with a summons in the manner prescribed by statute is void. Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444, citing, e.g. , Nagel v. P & M Distributors, Inc. (1969) 273 Cal.App.2d 176. Where there was never valid service of summons, the court must set aside the default even where there is no showing of a meritorious defense. Peralta v. Heights Medical Center, Inc. (1988) 485 U.S. 80, 86-87. (This section does not require that a responsive pleading be filed nor that there be any showing concerning avoidance of service of process).

Here, as noted above, defendant has submitted evidence that he was not in fact personally served with the summons and complaint as represented in the proof of service.