YONGJUN ZHAO VS. YI WANG, ET AL

Service of process on an individual may be effected in various ways. A “summons may be served by leaving a copy of the summons and complaint at the person’s . . . usual place of business, . . . in the presence of . . . a person apparently in charge of their office, place of business, . . .” followed by mailing a copy of the papers to the place where substituted service was made. (Code Civ. Proc., § 415.20, subd. (b).) Alternatively, where the plaintiff has been unable to effect personal or substituted service by reasonable diligence, upon application to and approval by the court, service may be made by email or publication. (Id., §§ 413.30, 415.50.)

July 24, 2026 Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ A corporation may be served through “the person designated as agent for service of process” or “the president, chief executive officer, or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a controller or chief financial officer, a general manager, or a person authorized by the corporation to receive service of process.” (Code Civ. Proc., § 416.10, subd. (a), (b).) If one of those people is unavailable, a corporation may be served by leaving the papers with a person “apparently in charge.” (Id., § 415.20, subd. (a).)

“Section 417.10, subdivision (a) provides, in relevant part, that where substituted service was effectuated under section 415.20, the affidavit attesting to such service must state ‘the time, place, and manner of service and facts showing that the service was made in accordance with this chapter. The affidavit shall recite or in other manner show the name of the person to whom a copy of the summons and of the complaint were delivered, and, if appropriate, his or her title or the capacity in which he or she is served.’” (Chinese Theater, LLC v. Starline Tours USA, Inc. (2025) 115 Cal.App.5th 1048, 1057 (Chinese Theater), citing Code Civ. Proc., § 417.10, subd. (a); see also id. at pp. 1057-1058, citing Jud. Council of Cal., com., foll. § 417.10.)

Review of the four proofs of service of summons and two attached declarations of diligence filed by plaintiff indicates that service of process was defective. The substituted service asserted was not supported by facts indicating that service made upon a person apparently in charge of the business, but instead merely stated that service was made to “Jane Doe, Waitress” (proofs of service of summons, filed on December 24 and 31, 2024) or a “John Doe, employee/person in charge.” (Two proofs of service of summons, filed on February 3, 2025; Code Civ.

Proc., § 415.20.) Here, although the declarations submitted by the process server refer to John Doe as “person in charge,” that does not demonstrate that substituted service was properly effected. (Chinese Theater, supra, 115 Cal.App.5th at p. 1059.) Rather, as the Court of Appeal has explained, “[w]e conclude the phrase “apparently in charge” cannot reasonably be read to validate service on any employee found at a business location.” (Ibid.) Instead, “[t]here must be some indication warranting a finding the employee is someone ‘apparently in charge’ and reasonably likely to deliver the service documents to the intended recipient and the service declarations should reflect some basic facts upon which the finding was made.” (Ibid.)

Accordingly, defendants have established that plaintiff did not satisfy the requirements for service of process.

A defendant may file a motion to quash service of summons “on or before the last day of his or her time to plead or within any further time that the court may for good cause allow.” (Code Civ. Proc., ¶ 418.10, subd. (a).) Defendants’ motion to quash was not timely made within their time to plead and defendants have not made any argument in their briefing as to good cause.

Code of Civil Procedure, section 437, subdivision (d) is proper basis for setting aside a default for lack of service of process. The statute provides:

The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or

July 24, 2026 Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.

(Code Civ. Proc., § 473, subd. (d).)

Because service appears void on the face of the proofs of service, the court has the power to vacate the default at any time upon a reasonable showing. (See, e.g., California Capital Ins. Co. v. Hoehn (2024) 17 Cal.5th 207, 215.) Motions to set aside a default made on the grounds that service was void are not subject to the time limitations of Section 473. (Id., at p. 225 [holding that “a section 473(d) motion to vacate judgment that is void for lack of proper service is not subject to the judicially imposed two-year limitation]; Batte v. Bandy (1958) 165 Cal.App.2d 527, 537-38 [motions based on the ground that service and default are void on their face are not within the purview of the time limitations of section 473].)

While defendants did not cite Section 473, subdivision (d) in the briefing on their motion to set aside default, they argue that service of process was not properly effected and that the defaults should be set aside on that basis. Because service appears void, the motion to set aside default was timely under Section 473, subdivision (d).

Defendants have retained counsel. Their counsel is directed to advise plaintiff’s counsel whether defendants’ counsel will accept service on their behalf.

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, defendants’ counsel shall prepare a written order consistent with the court’s ruling for the court’s signature, pursuant to California Rules of Court, Rule 3.1312 and Local Rule 3.403(b)(iv), and provide written notice of the ruling to all parties who have appeared in this action. The order should be e-filed only, do not email or mail a hard copy to the court.