Case Number: 03T03476 Hearing Date: January 17, 2018 Dept: 77

Defendant April Cobb’s Motion to Vacate Default Judgment is denied.

Background

Plaintiff COG Financial (“Plaintiff”) filed the instant action for breach of written retail installment agreement and repossession of the subject motor vehicle against Defendant April Cobbs on December 29, 2003. Default was entered against Defendant on May 20, 2004, and default judgment was entered against her on June 11, 2004. Defendant filed the instant motion to vacate the default judgment on May 18, 2017. The judgment was timely renewed on April 15, 2014. Defendant filed the instant motion to vacate the default judgment on January 9, 2017. The hearing was initially set for June 12, 2017, but continued by the court to allow Plaintiff to provide a courtesy copy of its opposition papers.

Discussion

Defendant moves to vacate the default judgment pursuant to CCP section 473 on the grounds that she was never served with the Summons and Complaint. A judgment entered without proper service of the Summons and Complaint is void. (See Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 858.)

Where a party moves under section 473, subdivision (d) to set aside “a judgment that, though valid on its face, is void for lack of proper service, the courts have adopted by analogy the statutory period for relief from a default judgment” provided by section 473.5, that is, the two-year outer limit. (8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial Court, § 209, pp. 814–815 (Witkin); Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1120–1124, 265 Cal.Rptr. 286; Schenkel v. Resnik (1994) 33 Cal.Rptr.2d 60, 27 Cal.App.4th Supp. 1, 3–4; see Gibble v. Car–Lene Research, Inc. (1998) 67 Cal.App.4th 295, 301, fn. 3, 78 Cal.Rptr.2d 892.)

(Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180.) Here, Defendant seeks to attack a judgment entered 13 years ago. This is well outside the two-year deadline for challenging a facially valid judgment that is void for lack of proper service. (See ibid.)

Additionally, “the filing of a proof of service creates a rebuttable presumption that the service was proper” if the proof of service complies with the statutory requirements. (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441.) A party may then come forward with evidence to rebut the presumption. (Ibid.)

The proof of service of the summons and complaint regarding Defendant was filed on May 7, 2004. It indicates that she was sub-served on March 20, 2004, at 1237 N. Cherokee Avenue, #5N, Los Angeles, California by leaving the papers with a co-occupant name Eliana Knott. A declaration of diligence demonstrating prior attempts at personal service is attached to the proof of service. Also, a declaration of mailing of the papers is attached. The proof of service, therefore, creates a rebuttable presumption of proper service.

The court notes that by bringing this motion more than two years after entry of judgment, Defendant cannot rely on extrinsic evidence to overcome the facially valid proof of service. (See Trackman, supra, 187 Cal.App.4th at 181-182.) Even assuming it would be proper to consider extrinsic evidence or declarations, Defendant’s motion is not supported by any declaration or other evidence regarding the purported lack of service of the Summons and Complaint. The motion merely states that “Defendant was not served any documents including a Summons & Complaint.” (Motion, p. 1:20-21.) No explanation is provided as to whether Defendant was living at that address at the time of service, or whether Defendant had a relationship with the purported co-occupant. Accordingly, Defendant has not presented any evidence to rebut the presumption of proper service. As further pointed out in Plaintiff’s opposition, Plaintiff sent multiple mailings to the service address that were never returned. (Opp., Zeller Decl., ¶¶6, 11, 14.)

Based on the foregoing, the motion to vacate the default judgment is denied.