Case Number: KC054621    Hearing Date: July 24, 2014    Dept: J

Re: Hilda Alvarado v. Leo Borunda, etc. (KC054621)

MOTION TO SET ASIDE DEFAULT JUDGMENT

Moving Party: Defendant Leo Borunda dba Plaza Borunda

Respondent: Assignee Sequoia Concepts, Inc.

POS: Moving OK; Opposing filed just 8 court days prior to the hearing in violation of CCP § 1005(b)

The Complaint herein alleges that on January 6, 2007, Plaintiff was injured on Defendant’s premises located at 124 N.1st Street, La Puente. Plaintiff filed her judicial council form complaint on January 2, 2009, asserting causes of action for premises liability and general negligence.

Judgment by default was entered on 5/27/10.

Defendant Elihu “Leo” Borunda dba Plaza Borunda (“Defendant”) now moves to set aside Plaintiff Hilda Alvarado’s (“Plaintiff”) May 27, 2010 Default Judgment on the ground that he was never served with the Summons and Complaint in this action.

“The court may… on motion of either party after notice to the other party, set aside any void judgment or order.” (CCP § 473(d).) Lack of personal jurisdiction renders a default judgment void, so that it may be vacated at any time. (Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1249.)

Filing a proof of service that complies with statutory standards creates a REBUTTABLE PRESUMPTION that service was proper. (See Dill v. Berquist Const. Co., Inc. (1994) 24 Cal.App.4th 1426, 1441–1442.)

The Proof of Service of Summons filed on April 29, 2009 demonstrates that Defendant was personally served with the Summons and Complaint on April 24, 2009. A separate Proof of Service filed March 24, 2010 attests that Defendant was served with a Statement of Damages on March 18, 2010. However, Defendant declares that he was never served with the Summons and Complaint in this action. Specifically, Defendant attests that:

From 2000 to present, Defendant has resided at 3600 State Highway 86 in Thermal California (Id. ¶ 1); from 1979 to the present, the thirteen unit strip mall commonly known as 124 N. 1st Street, La Puente, California (the “property”) has been owned by the Leo Borunda Trust Dated June 1979 (Id. ¶ 2); the trustees are his daughters and son (Ibid.); the property never had an on-site property manager and he has never maintained an office or storefront at the property (Id. ¶ 3); Defendant has never received mail, or maintained a mail box at the subject property (Id. ¶ 4); over the past twenty years, he has traveled form his residence in Thermal California to the property twice a month on every other Tuesday to collect rent and to check the overall condition of the property (Id. ¶ 5); Defendant was never present at the property on Fridays, and he was not present at the property at any time on Friday, April 24, 2009 (Id. ¶ 6); and that Defendant never received, from any source, Plaintiff’s Summons Complaint, Alternative Dispute Resolution Package or Notice of Case Management Conference (Ibid.).

In 2007, Plaintiff was a tenant at the property; Defendant first learned of the incident from another tenant; and Defendant immediately went to check on Plaintiff who told him that she had tripped on the sidewalk in front of her rented barber shop but that she was not injured. (Id. ¶ 8.)

The first time Defendant learned anything about Plaintiff’s lawsuit was in April of 2014, from Sequoia Financial Collection Services. (Id. ¶ 10.) Defendant was never served, handed, mailed, or given any type of pleading or correspondence from anyone in this case, or any other case filed or concerning Plaintiff until that time. (Id. ¶ 11.)

Defendant’s declaration rebuts the presumption created by the proof of service that the service was proper.

Plaintiff’s assignor, in opposition, submits the Declaration of Plaintiff Hilda Alvarado, who attests as follows: During the period of her tenancy, she had the occasion to see Plaintiff at the mall on many days other than every other Tuesday; and in fact knows that he received mail such as rent and letters, as well as other mail directed to him at 124 N. 1st Street. That address was located at the rear of 126 N. 1st Street which was and is her income tax service, and Defendant maintains a small office at that address with a mailbox; and he has a desk, and a refrigerator and some chairs in that office which he utilizes to meet with people when he is at the mall. Plaintiff never told Defendant that she was uninjured. Plaintiff’s attorney called and wrote to Defendant many times to get the name of his insurance company to no avail, until just recently when he finally notified his insurance company, after hearing from Sequoia. (Opposition, Alvarado Decl.)

Plaintiff’s declaration, however, fails to provide facts requisite to effective service. Specifically, Plaintiff fails to submit any evidence demonstrating that Defendant was personally served on April 29, 2009. Other than the original Proof of Service forms, there is no declaration from the process server describing the facts surrounding the alleged personal service. Thus, the motion is granted.

This action for personal injuries is ordered transferred to Department 91 of the Stanley Mosk Courthouse for all future purposes.