Cherlin Lee Berndt, Trustee of the Berndt Family Trust, dated October 25, 2001 vs. Berndt

California Code of Civil Procedure § 415.20(b) “If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.” Nothing within the plain language of California Code of Civil Procedure § 415.20(b) requires that the person with whom service is made consent or authorize a person living in their dwelling house, usual place of abode, to be their agent of service for the substituted service to be complete.

California Evidence Code § 647 creates a rebuttable presumption that a registered process server's proof of service is true and that service was legally proper. This is a presumption affecting the burden of producing evidence, which places the burden on the challenging party to introduce contrary evidence to overcome it. The California Court of Appeal held that a court is not required to accept a self-serving statement by a party to rebut a process server’s declaration. (Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 751.)

Per ROA 18, the Court Clerk’s entered the Default Judgment against Defendant Betty Lim on 4/9/2026. The Proof of Service for Ms. Lim shows that substitute service was effectuated on 3/14/2026 by serving Isabella Wen (ROA 13) and that Mr. Nechemia (ROA 15) was served on the same date by substitute service to Isabella Wen. Mr. Nechemia filed an Answer to the Complaint on March 27, 2026. A default judgment was not entered against Ms. Lim until April 9, 2026, approximately 27 days after the substitute service. There is no evidence before this Court that Ms. Lim did not have access to a phone, email, or other form of communication for the 27 days. The Court finds that Ms. Lim's lack of communication and response to these court proceedings was inexcusable neglect.