Interinsurance Exchange of the Automobile Club vs. Souza, Gary Martin Jr

Void on its Face "A judgment 'is considered void on its face only when the invalidity is apparent from an inspection of the judgment roll or court record without consideration of extrinsic evidence.' [Citation.] When a default judgment has been taken, the judgment roll consists of 'the summons, with the affidavit or proof of service; the complaint; the request for entry of default ..., and a copy of the judgment.' (Sec. 670, subd. (a).) If the invalidity can be shown only through consideration of extrinsic evidence, such as declarations or testimony, the order/judgment is not void on its face." [Citation.] (Kremerman v. White (2021) 71 Cal.App.5th 358, 370.) Here, the proof of service, summons, complaint, entry of default and copy of the judgment demonstrate the judgment is not void on its face.

Code of Civil Procedure section 415.20(b) provides for substitute service: "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."

" 'A judgment or order is said to be void on its face when the invalidity is apparent upon an inspection of the judgment-roll.' [citation omitted] In a case in which the defendant does not answer the complaint, the judgment roll includes the proof of service. (Sec. 670, subd. (a).) Thus, in a motion under the sixth paragraph of section 473 ["The court...may, on motion of either party after notice to the other party, set aside any void judgment or order" and now subsection (d)], the moving defendant need make no evidentiary showing whatsoever, so long as the jurisdictional defect is shown by the proof of service." (Dill v.

Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441.) Here, there is no such defect readily apparent from the judgment roll. The face of the proof of service reveals apparent compliance with the statutory requirements. There appears to be reasonable due diligence as to the attempts at personal service, the proof indicates that the process server served the substitute person at the "Home" and provides a description of the person, over 18 years of age, with whom the summons and complaint was left.

Defendant appears to concede this via presentation of the declaration of Alcantar.

Void via Extrinsic Evidence California is a jurisdiction 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.) Accordingly, the Court may set aside a default when the summons and complaint were not properly served because the default is void. (Brown v. Williams (2000) 78 Cal. App. 4th 182, 186 n4.) "A judgment may be void due to improper service of summons . . ." (Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 857-858; Ellard v. Conway (2001) 94 Cal.App.4th 540, 544 ("a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.").)

Under Evidence Code section 647: "[t]he return of a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return." (Evid. Code Sec. 647.) Under Evidence Code section 604: "[t]he 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." (Evid. Code Sec. 604.) Therefore, such a completed proof of service creates a rebuttable presumption that the documents as indicated in the proof of service were received. (Colleen M. v. Fertility & Surgical Assocs. (2005) 132 Cal.App.4th 1466, 1479-1480.)

The presumption of proper service can be rebutted by introducing evidence that the document was not received. (Phay Him v. City & County of San Francisco (2005) 133 Cal.App.4th 437, 445.) A rebuttal of the presumption of proper service should be supported by sworn testimony that neither the attorney of record nor the party received the document. (Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1479-1480.) Therefore, the Court starts with the presumption of service established. In rebuttal, the Court notes the declaration of the resident of the Sunnyside Address who indicates that the Sunnyside Address is not Defendant's dwelling or usual place of abode.

A person's dwelling house or usual place of abode is the place the person holds out as his or her principal residence and where he or she is mostly likely to receive actual notice. (Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1415-1417.) The declaration indicates Defendant is homeless and has never lived at the address. This is sufficient to rebut the presumption. As such, the Court finds Defendant has established a sufficient showing of excusable neglect as to the failure to timely respond to the lawsuit.

As such, the Court grants the motion to set aside entry of default and default judgment under Code of Civil Procedure section 473(d) as void based on extrinsic evidence that the Sunnyside Address is not Defendant's dwelling or usual place of abode.

Motion to Quash "Failure to give notice violates 'the most rudimentary demands of due process of law.'" (Peralta v. Heights Medical Center, Inc. (1988) 485 U.S. 80, 84.) Moreover, "compliance with the statutes governing service of process is essential to establish that court's personal jurisdiction over a defendant. (Code Civ. Proc. Sec. 410.50.) "When a defendant challenges that jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service." (Dill v.

Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439-1440.) This burden applies to all motions challenging service as long as "...the motions have similar objectives, raise the same issues, and can serve the same purpose." (Id. at 1440.) As no opposition has been filed, Plaintiff has not met its burden on this motion to quash. Therefore, the Court grants the motion.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings. Re: Estes, Jeremy Lee vs. Cheema Transport, Inc.