Case Number: EC061961    Hearing Date: August 01, 2014    Dept: NCB

Motion to Vacate Judgment

This case arises from the Plaintiff’s claim that the Defendant breached a business line of credit agreement by failing to pay all amounts due.
No trial is set because a default was entered on March 7, 2014. A default judgment for $62,051.28 was entered on May 20, 2014.

This hearing concerns the Defendant’s motion to vacate the judgment and to dismiss the case. The Defendant’s motion does not include any memorandum in which she cites to any law or facts.
Under CRC rule 3.1113, a party must accompany a motion with a memorandum that contains a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced. CRC rule 3.1113 states that the Court may construe the absence of a memorandum as an admission that the motion is not meritorious and cause for its denial.
In the pending case, the Defendant has not identified any legal procedure for setting aside the default or default judgment. The Defendant does not identify any statute and demonstrate that there are grounds under the identified statute to obtain the relief requested. Since the Defendant did not identify the legal grounds for the relief requested, the Court denies the motion.

The Defendant supported her papers with an affidavit in which she states that she was not served with the summons and complaint. It appears that the Defendant is claiming that she did not receive notice of this case in time to file a responsive pleading.
A review of the Court file reveals that the Plaintiff filed a proof of service on February 11, 2014 that reveals that the Plaintiff served the Defendant by substituted service on January 27, 2014 at 4:50 PM at 700 N. Valley St. B #91159, Anaheim, CA. The proof of service was completed by a registered process server. Under Evidence Code section 647, the facts in the proof of service are entitled to a presumption that the facts are accurate because a registered process server completed the proof of service.
The Defendant’s papers fail to offer sufficient facts to rebut the presumption created by Evidence Code section 647. The Defendant did not discuss the proof of service or offer any facts to rebut the facts of service, e.g., facts regarding the address or the date. Instead, the Defendant offers only the statement that she was not served. This is insufficient to rebut the presumption created by Evidence Code section 647 that the registered process server delivered the papers to the Defendant.
Further, the Plaintiff provides a letter in which the Defendant, Anna Bronstein identified the 700 N. Valley St. B #91159, Anaheim, CA as her new address (see copy of letter in exhibit B to Callahan decl.). Further, the Defendant stated in the letter that “All future communications with me MUST be done in writing and sent to the address noted in this letter by USPS.” This indicates that the Defendant had identified the 700 N. Valley St. address as the correct address for communications to her. Since the Plaintiff served the summons and complaint on the address identified by the Defendant as her new address, the Plaintiff has provided sufficient evidence to establish that the Defendant was properly served.

Therefore, the Court denies the Defendant’s motion to vacate the judgment because it was not accompanied by a memorandum, as required under CRC rule 3.1113, and because the Defendant did not offer sufficient facts to rebut the presumption created by Evidence Code section 647 that the facts are correct in the proof of service completed by the registered process server. Since these facts demonstrate that the Defendant was properly served, there is no basis to find that the default judgment is void or that the service of summons should be quashed.

Motion is denied.