Case Number: 18STLC05449 Hearing Date: January 21, 2020 Dept: 26

Infinity Ins. Co. v. Lopez, et al.

MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT; QUASH SERVICE OF SUMMONS AND COMPLAINT

(CCP §§ 473(d), 473.5, 418.10)

TENTATIVE RULING:

Defendant Sergei Sychev’s Motion to Vacate Default and Default Judgment and Quash Service of Summons is CONTINUED TO APRIL 16, 2020 AT 10:30 AM IN DEPARTMENT 26.

ANALYSIS:

Plaintiff Infinity Insurance Company (“Plaintiff”) filed the instant action for automobile subrogation against Defendants Mark P. Lopez, Sergei Sychev aka Sergei A. Sychev (“Defendant Sychev”), and Planet Bouncy, LLC (“Defendant”) on April 9, 2018. Following their failure to file a responsive pleading, the court entered default against Defendants Sychev and Planet Bouncy, LLC on June 18, 2019 and default judgment on September 27, 2019. Defendant Sychev filed the instant Motion to Vacate Default and Default Judgment and Quash Service of Summons on November 19, 2019. Plaintiff filed its opposition on January 6, 2020.

When a motion to quash is brought concurrently with a motion to vacate default, the court must rule on the motion to vacate first. (Steven M. Garber & Assocs. v Eskandarian (2007) 150 CA4th 813, 819 (holding that a defendant against whom a default has been entered is out of court and is not entitled to take any further affirmative steps in the action except for a motion for relief from the default).)

Vacate Default and Default Judgment

Code of Civil Procedure section 473(d)

The request to vacate the default and default judgment is first brought pursuant to Code of Civil Procedure section 473, subdivision (d), under which “[t]he court may . . . set aside any void judgment or order.” (Code Civ. Proc., § 473, subd. (d).) In County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1229, the Court of Appeal explained:

[W]here it is shown that there has been a complete failure of service of process upon a defendant, he generally has no duty to take affirmative action to preserve his right to challenge the judgment or order even if he later obtains actual knowledge of it because “[w]hat is initially void is ever void and life may not be breathed into it by lapse of time.” (Morgan, supra, 105 Cal.App.2d at p. 731, 234 P.2d 319.) Consequently under such circumstances, “neither laches nor the ordinary statutes of limitation may be invoked as a defense” against an action or proceeding to vacate such a judgment or order. (Id. at p. 732, 234 P.2d 319.) And, where evidence is admitted without objection that shows the existence of the invalidity of a judgment or order valid on its face, “it is the duty of the court to declare the judgment or order void.” (Thompson v. Cook (1942) 20 Cal.2d 564, 569, 127 P.2d 909 (Cook ).)

(County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215.) There being no deadline to bring a motion under Code of Civil Procedure section 473, subdivision (d), Defendant’s request for relief under this statute is timely.

Defendant Sychev must show that service of the Summons and Complaint did not comply with the statutory requirements. The proof of substitute service filed on June 18, 2019 is attested to by a registered process server, and therefore, entitled to a presumption of validity. (Cal. Evid. Code, § 647.) It states that following multiple attempts at personal service in March and April 2019, the Summons and Complaint were left at 224 19th Street, Hermosa Beach, California on April 26, 2019 at 8:08 pm with Co-Occupant “John Doe”. (Proof of Service, filed 6/18/19, ¶¶3-5.) “John Doe” is described as “Caucasian, Male, 40+ years old, 5’ 8” tall, 180 lbs., brown hair.” (Id. at ¶5.) The papers were thereafter mailed to the service address on the April 29, 2019. (Id. at ¶5(b)(4).)

In his moving declaration, Defendant admits that the service address is his residence, but points out that the declartion of diligence incorretly states—for the service attempts in March 2019—that his home was behind a locked gate with no access. (Motion, Sychev Decl., ¶7.) In fact, Defendant provides evidence that his home is not gated or otherwise barred from access. (Id. at Exh. C.) The service attempts in April 2019 do not indicate the presence of a gate at the service address. (Proof of Service, p. 3.) As Defendant has provided evidence that the service attempts in March 2019 were either erroneous or false, he has overcome the presumption of the validity of the proof of service. Defendant Sychev further provides evidence that he was out of the country from April 15, 2019 to April 19, 2019. (Motion, Sychev Decl. at ¶7 and Exh. D.) While it is unclear from Defendant Sychev’s evidence whether he was out of the country on April 26, 2019, the date the papers were apparently left with “John Doe,” he disavows that he has a co-occupant or was ever served with the Summons and Complaint. (Id. at ¶7.)

In light of Defendant’s evidence, the burden now shifts to Plaintiff to demonstrate proper service of the Summons and Complaint. In opposition, Plaintiff presents the declaration of its process server, J. Martinez. Martinez declares that he initially attempted to serve Defendant Sychev in April to June, 2018. (Opp., Martinez Decl., ¶3 and Exh. A.) He was informed by a neighbor that the service address was a vacation home and only used by the occupants once a month. (Id. at ¶3.) Ultimately, the attempts at service on Defendant Sychev in 2018 were unsuccessful. (Ibid.) Martinez goes on to declare that in March 2019 he was again instructed by his employer to attempt service at the service address. (Id. at ¶4.) At the same time, Martinez was instructed to serve a party a nearby address that was on a locked and gated property with no access. (Ibid.) Martinez contends that he confused the codes for the service address with the other residence when attempting service in March 2019, leading to the incorrect description on the declaration of diligence. (Opp., Martinez Decl., ¶5.) He now declares, in conformity with the declaration of diligence, that on April 26, 2019, he delivered the papers to an occupant who refused to state his name. (Id. at ¶7.)

Based on the detailed declaration of the process server explaining that the only misstatement in the declaration of diligence regarded access to the service address in March 2019, the Court is satisfied that Plaintiff reasonably sought to personally serve Defendant Sychev in April 2019 before effectuating substitute service. Defendant Sychev’s declaration offers no explanation as to his whereabouts on the night of April 26, 2019 nor does it describe his physical features to rule him out as “John Doe.”

As consideration of both parties’ evidence does not demonstrate failure of service of process, Defendant Sychev has not shown he is entitled to relief under Civil Code section 473, subdivision (d).

Code of Civil Procedure section 473.5

The request to vacate the default and default judgment is also brought pursuant to Code of Civil Procedure section 473.5, subdivision (a), which states:

When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.

(Code Civ. Proc., § 473.5, subd. (a).) Default judgment was entered on September 27, 2019, so the instant Motion was brought less than two months later. Defendant Sychev states in his declaration that he only received notice of this action on October 3, 2019. (Motion, Sychev Decl., ¶8.) However, no explanation is provided in the Motion regarding why Defendant Sychev received a letter from defense counsel in October 2019 but did not receive any of the earlier mailed papers including a copy of the Summons and Complaint in April 2019, the request for entry of default in June 2019, or the request for default judgment in September 2019. (Id. at ¶¶8-10.) He simply states that he was not evading servic. (Id. at ¶9.) Without further details regarding non-receipt of these documents, Defendant Sychev has not show the Court that his lack of actual notice was not caused by his own avoidance of service or inexcusable neglect. This must be demonstrated before the Court can find relief under Code of Civil Procedure section 473.5 is proper.

Quash Service of Summons and Complaint

Without a showing that the default and default judgment should be vacated, the Court cannot reach the question of quashing service of the Summons and Complaint.

Conclusion

Based on the foregoing, the hearing on Defendant Sergei Sychev’s Motion to Vacate Default and Default Judgment is CONTINUED TO April 16, 2020 AT 10:30 AM IN DEPARTMENT 26. AT LEAST 16 COURT DAYS PRIOR TO THE HEARING, DEFENDANT SYCHEV IS TO FILE AND SERVE SUPPLEMENTAL PAPERS ADDRESSING THE DEFECTS DISCUSSED ABOVE. SPECIFICALLY, DEFENDANT SYCHEV MUST PROVIDE DETAILED EVIDENCE OF (1) HIS WHEREABOUTS ON THE NIGHT OF APRIL 26, 2019; (2) HIS PHYSICAL CHARACTERISTICS; AND (3) WHY HE FAILED TO RECEIVE ANY OF THE LEGAL DOCUMENTS MAILED TO HIS RESIDENCE DURING THE COURSE OF THIS ACTION.

FAILURE TO COMPLY WITH THE COURT’S ORDER MAY RESULT IN THE MOTION BEING PLACED OFF CALENDAR OR DENIED. PLAINTIFF MAY FILE AND SERVE A SUPPLEMENTAL OPPOSTION AT LEAST NINE (9) COURT DAYS PRIOR TO THE NEW HEARING DATE.

Court clerk to give notice.