2012-00127724-CL-CL

Midland Funding, LLC vs. Kristin Folz

Nature of Proceeding: Motion to Set Aside Default

Filed By: Folz, Kristin

This matter was continued to this date from December 10, 2018. The Court allowed defendant to file a supplemental opposition on or before December 27, 2018. As of January 10, no supplemental papers have been filed.

Therefore, the tentative ruling of December 10, 2018 is again adopted as the court’s tentative ruling for this date.

Tentative ruling of December 10, 2018.

Self-represented defendant’s Motion to Set Aside Default and Motion to Quash Service of Summons is denied.

This lawsuit arises from an alleged credit card debt purchased by the plaintiff.

Defendant seeks to set aside the default and default judgment pursuant to CCP § 418.10(a)(1), Civil Code section §1788.61, and CCP §473(d)) as well as pursuant to the equitable powers of the court to remedy extrinsic fraud in service.

Civil Code section 1788.61 provides:

(a)(1) Notwithstanding Section 473.5 of the Code of Civil Procedure, if service of a summons has not resulted in actual notice to a person in time to defend an action brought by a debt buyer and a default or default judgment has been entered against the person in the action, the person may serve and file a notice of motion and motion to set aside the default or default judgment and for leave to defend the action.

(2) Except as provided in paragraph (3), the notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of:

(A) Six years after entry of the default or default judgment against the person.

(B) One hundred eighty days of the first actual notice of the action.

The proof of service states process server Mike Singh personally served defendant

with the summons and complaint on August 5, 2012 at 9158 Caldera Way,

Sacramento. Default and default judgment were entered by the clerk on October 22,

2012. A writ of execution was first issued on June 21, 2018. Pursuant to a levy,
$1,725.51 was levied from the defendant’s bank account on or around August 3,2018.

This motion was filed on November 5, 2018, more than six years from the entry of
default or default judgment.

Defendant states that at the time of the purported personal service, she and her ex-spouse had separated, and she was living at 2920 Maison Way, Sacramento, CA 95864. She stated that she moved from the 9158 Caldera address in September of 2007. She states that her ex-husband never mentioned receiving any documents at his house pertaining to a lawsuit. She states that the alleged service did not result in any notice to her of this lawsuit and that she did not have notice of the lawsuit until August 3, 2018 when her bank account was levied upon. (Declaration of Kristin Folz) Her ex-husband Steve Folz states in his declaration that defendant moved out in 2007 and that no one came to his house in August of 2012 to serve any legal documents. He states that the only persons living at the house at the time of service were himself and his then-five year old daughter.

In opposition, Plaintiff states that it mailed notice of entry of default as well as notice of entry of judgment to the defendant at the same address as the service address and the mail was not returned as non-deliverable. Plaintiff states that it obtained the address from the post office as a valid address for the defendant Kristin Folz.

Unfortunately, the motion is untimely under CC 1788.61 because the motion was filed more than six years from the entry of judgment. The motion is denied pursuant to CCP 473(d) because defendant has not shown that the judgment is void on its face. The validity of a motion to vacate default judgment brought after the expiration of two years after entry of such default may not be supported by any extrinsic evidence but must be determined solely upon the validity of the judgment roll. See Trackman v Kenney (2010) 187 Cal.App.4th 175, 181.

The motion to quash service of summons and complaint and the motion to set aside void judgment pursuant to the court’s equitable powers is denied. Because of the strong public policy in favor of the finality of judgments, equitable relief from a default judgment or order is available only in exceptional circumstances. Yolo County Dept. of Child Support Services, v. Myers, (2016) 248 Cal. App. 4th 42, 49. The Court is not persuaded that defendant was not personally served with the summons and complaint as set forth in the proof of service.

The return of a registered process server upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return. Evidence Code section 647. American Express Centurion Bank v. Zara (2011, 6th Dist) 199 Cal App 4th 383. California Evidence Code § 604 states: “The effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption. Nothing in this section shall be construed to prevent the drawing of any inference that may be appropriate.” In this case, although the presumption is no longer present, the Court has not been persuaded based on the declarations of defendant and her ex-husband that she was not personally served with the summons and complaint as set forth in the process server’s declaration.

Defendant does not actually state anywhere in her declaration that she was not present at the time of the service and that she was never personally served with the motion. She admits that she and her husband shared custody of their five year old daughter yet she omits any details as to how the change in custody occurred or whether she was ever present at the location of service during the time of the 2007

separation and the 2016 divorce. Her ex husband states he did not receive any papers about the lawsuit but does not mention the items mailed to defendant at the time the request for default was served and later after the judgment was entered. Plaintiff states that those documents were never returned as non-deliverable.

Therefore, the motion to quash service of summons and the motion to set aside default is denied.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.