06AS02735

Kim S. Knorr vs. Laura Brandon

Nature of Proceeding: Motion to Set Aside

Filed By: Williams, Jennifer L.

Defendant Laura Brandon’s Motion to Set Aside Default and Default Judgment
continued to today’s date from Oct. 21, 2013 for further briefing is DENIED. C.C.P.,
sec. 437(d). The Court has received and considered the Supplemental briefs filed by
both parties.

Defendant asserts that she was never served with the summons and complaint in this
action, and was unaware of the action until years later.

Defendant asserts that she was purportedly served as an individual, and as agent for
service of process for Four Seasons and Double Diamond by substituted service on
her daughter “Aaron Brandon”, described as age 20, skin white, hair brown, height
5’8”, weight 155 lbs. on March 15, 2007.

The description of the daughter on the proof of service does not match defendant’s
daughter, who was only 16 years of age at the time, therefore not a competent
member of the household (at least 18 years of age), with dark skin, dark eyes, dark
hair and was 5’2”, 125 lbs. at that time.

Defendant’s supplemental brief hypothesizes that one of defendant’s daughter’s
friends (also 16 years old) was served instead of her daughter. However, as the
declaration reflects that the daughter’s friend does not remember being served, this is
purely speculative.

In opposition, plaintiff provides proofs of service reflecting personal service by a
registered process server on Laura Brandon, Four Seasons General Contractor, Inc.
by service on Laura Brandon agent for service of process and on Laura Brandon
individually and d.b.a. Double Diamond Development, all on August 25, 2006. These
proofs of service of the original complaint were filed with the Court on Sept. 11, 2006.
There is no doubt that defendant had actual notice of this suit and failed to file a
responsive pleading.

A filed proof of service creates a rebuttable presumption that service actually occurred.
See Dill v. Berquist Const. Co., Inc. (1994) 24 Cal. App. 4th 1426, 1441-1442. All
service was made at the same address. No documents served at that address were
ever returned to plaintiff as undeliverable.

Further, a proof of service executed by a registered process server “establishes a
presumption, affecting the burden of producing evidence, of the facts stated in the
return,” including the process server’s statement that the receiver of the papers was
informed of their general nature. (Evid. Code §647.)

Here, opposing party has shown that the Court did not lack personal jurisdiction over
the defendant. (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.) Thus the Judgment
is not void, as defendant had actual knowledge of the suit.

Although the Amended complaint was served by substituted service, defendant’s
failure to respond was due to her own inaction and lack of diligence.

Although the defendant contends that Laura Brandon signed the contract in her
representative capacity for Four Seasons, only and was not individually a party to that
contract, because the Judgment against her was entered more than five years ago, on
Feb. 11, 2008, this belated challenge to the merits of the claim itself is untimely under
C.C.P., sec. 437(b). The Court does not reach the merits of the complaint on a motion
to set aside a judgment. No conduct by the plaintiff has lulled the defendant into
inaction.

Defendant has failed to meet the higher standard for equitable relief from the default
judgment.

This minute order is effective immediately. No formal order nor further notice is
required, the tentative ruling providing sufficient notice.