Case Number: EC062268    Hearing Date: July 25, 2014    Dept: A

Koshan v Weiler

MOTION TO SET ASIDE DEFAULT &
MOTION TO QUASH SERVICE OF SUMMONS

Calendar: 4
Case No: EC062268
Date: 7/25/14

MP: Defendants, Chris Weiler and John Merrill Investments, Inc.
RP: Plaintiff, Michael Khoshan

RELIEF REQUESTED:
1. Order setting aside the defaults entered against Defendants
2. Order quashing the service of summons.

DISCUSSION:
This case arises from the Plaintiff’s claim that he was wrongfully evicted by the Defendants from property he was leasing after the property was sold in a foreclosure sale to the Defendants.
A default was entered against the Defendants on June 16, 2014.
This hearing concerns the Defendants’ motion to set aside the defaults on the ground that the summons and complaint were not served. In addition, the Defendant requests that the Court quash the service of summons.
CCP Section 418.10 authorizes motions to quash service and CCP section 473(d) authorizes a trial court to correct any clerical mistake and to set aside any judgment or order that is void as a matter of law. For example, the Court may set aside a default when the summons and complaint were not properly served. Brown v. Williams (2000) 78 Cal. App. 4th 182, 186 n4. Where the original service of process, which confers personal jurisdiction, must conform to statutory requirements or all that follows is void. Honda Motor Co. v. Superior Court (1992) 10 Cal. App. 4th 1043, 1048.

A review of the Court file reveals that the Plaintiff filed two proofs of service on June 10, 2014 to demonstrate that he had served both Defendants with the summons and complaint by making a personal delivery of the documents on the Defendant, Chris Weiler, as an individual and as the authorized agent for John Merrill Investments. The proofs of service were completed by D. Nieman, who states under penalty of perjury the following in paragraph 7 of the proofs of service:

1) his address is 7124 Owensmouth Ave., #106, Canoga Park, CA 91303 (paragraph 7b);
2) his telephone number is 747-444-1003 (paragraph 7c); and
3) he is a registered process server with the County of Los Angeles and that his registration number is “884” (paragraph 7e(3)).

The Defendant, Chris Weiler, has provided evidence in an untabbed declaration to indicate that he was not personally served with the summons and complaint. Mr. Weiler states that he learned of the lawsuit when he received an advertisement in the mail advising me that a lawsuit had been filed and requested that he hire the law firm. Mr. Weiler states that he then called his attorney, Amy Martinez, at the Geraci Law firm and learned of the pending litigation.
Further, the attorney, Amy Martinez, provides facts in a declaration regarding her attempts to speak with the process server “D. Nieman”. Ms. Martinez states in paragraph 10 that she attempted to contact D. Nieman at least four times at the phone number identified in the proof of service, but never received a phone call back.
Further, Ms. Martinez states that her investigation of the address, 7124 Owensmouth Ave., #106, Canoga Park, which D. Nieman identified in paragraph 7(b) of the proofs of service, revealed that there was no unit 106 at that address. Instead, the address contains a massage parlor, Serenity Massage (photographs of address in untabbed exhibit C). Ms. Martinez provides evidence that the owner of the massage parlor had not heard of D. Nieman.
Ms. Martinez states that she contacted the County Recorder’s Office for the County of Los Angeles and spoke to Eileen Aroda. Ms. Martinez states in paragraphs 12 and 13 that Ms. Aroda advised her that all process servers must be registered by the County of Los Angeles. Further, Ms. Aroda performed search of the database for registered process servers and found that “D. Nieman” is not a registered process server. Ms. Aroda also stated that there is no process server with the registration number “884”. Ms. Aroda added that she had never seen a 3-digit registration number and that a valid number would include at least four digits. Ms. Aroda also searched the bonds that process servers are required to post and found no bond by anyone with the last name “Nieman”.

The opposition papers offer the unpersuasive argument that the Defendants are wasting time and that the Defendants were validly served. However, the Plaintiff offers no declaration from the now-mysterious “D. Nieman” to demonstrate that he or she exists or that he or she is a registered process server. Further, the Plaintiff’s attorney offered no declaration to state that he provided the documents to a “D. Nieman” for service on the Defendants. In fact, the Plaintiff offers no facts whatsoever to address the Defendants’ evidence.

Accordingly, the facts in the Defendants’ papers indicate that the proofs of service were not completed by a registered process server. They are no entitled to any presumption of service and they appear to have no evidentiary weight because the person who signed them, “D. Nieman” cannot be located. Further, it is possible to draw an inference from the Defendants’ evidence that there is no “D. Nieman”.

Therefore, the Court will grant the Defendants’ motion and set aside the defaults entered on June 16, 2014 and quash the service of summons on the Defendants.

The Defendants request an award of monetary sanctions under CCP section 473(c)(1)(C). This section authorizes the Court to grant other relief as appropriate whenever the Court grants relief from a default, default judgment, or dismissal based on any of the provisions of section 473.
In the pending case, it is appropriate to grant relief to the Defendants for the attorneys fees that they incurred to investigate the invalid proofs of service and to file the pending motion. As noted above, the Plaintiff has offered no evidence to demonstrate that the proofs of service are valid.
The Defendants’ attorney, Amy Martinez, provides facts in paragraph 25 to demonstrate that she expects to bill 6 hours at $295 per hour and that the filing fee for this motion is $40. The amount requested of $1,810 is a reasonable amount of time to bill to prepare the pending motion to set aside a default and to quash the service of summons.
Accordingly, the Court will order the Plaintiff and his attorney to pay $1,810 under CCP section 473(c)(1)(C).

RULING:
GRANT motion and set aside the defaults entered against the Defendants on June 16, 2014 and quash the service of summons.
ORDER Plaintiff and his attorney to pay attorney’s fees and costs to the Defendants in the sum of $1,810.00, to be paid within thirty days.