Case Name: MCT Group v. Vincent Stevens
Case No.: 1-10-CV-181018

Defendant Vincent Stevens (“Defendant”) moves to quash service of summons and complaint and set aside default judgment as void.

This is an action for various common counts. According to the allegations of the complaint, Defendant became indebted to Operating Engineers Local Union # 3 Federal Credit Union, plaintiff MCT Group’s (“Plaintiff”) assignor, and has failed to pay all amounts due and owing. (Complaint, ¶¶ 8, 10, 12.) As of August 24, 2010, Defendant allegedly owed a total of $10,925.15 plus suit costs and interest.

On December 23, 2014, Defendant filed the instant motion to quash service of summons and set aside default judgment as void on the ground that the substituted service purportedly executed by Plaintiff was defective.

According to the proof of service of summons filed with the Court on December 30, 2010, substituted service was effectuated on Defendant by leaving copies of the summons and complaint with one Cynthia Castro, an occupant of the residence located at 2666 Puccini Avenue #12, San Jose. Substituted service was made after several attempts at personal service failed.

Defendant asserts that not only does the address 2666 Puccini Avenue #12 not exist, but a similarly addressed house was not his dwelling house or usual place of abode at the time of the alleged service. Thus, he argues, he was never properly served with the summons and complaint in this matter and therefore the subsequent default judgment is void as a matter of law.

The Court will not address the merits of the foregoing argument because the instant motion is untimely. Defendant does not contend that the resulting default judgment is facially invalid, only that it is void because of improper service. In such a circumstance, a motion for relief in the action must be sought no later than two years after entry of the default judgment. (Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1121-1122 [motion for relief from judgment valid on its face but void for improper service is governed by analogy to statutory period for relief provided by Code of Civil Procedure section 473.5, that is, the two-year outer limit]; Trackman v. Kenney (2010) 187 Cal.App.4th 175, 181 .) Here, the default judgment against Defendant was entered on March 23, 2011, but the instant motion was not filed until December 23, 2014, well over two years later.

The Court notes that there is no time limit on a collateral attack on a void judgment and only a direct attack; thus, Defendant can still file an independent action to set aside the default judgment for lack of personal jurisdiction. (Rochin v. Pat Johnson Mfg. Co. (1998) 67 Cal.App.4th 1228, 1239; see also Dill v. Berquist Const. Co., Inc. (1994) 24 Cal.App.4th 1426, 1444.) Denial of the instant motion does not preclude such an action by Defendant; i.e., the denial, especially as it was based on procedural and not substantive grounds, is not entitled to collateral estoppel effect. (Groves v. Peterson (2002) 100 Cal.App.4th 659, 668.)

In accordance with the foregoing analysis, Defendant’s motion is DENIED.