Valera v. Alvarez Jr. et al.

(35) Tentative Ruling

Re: Valera v. Alvarez Jr. et al. Superior Court Case No. 24CECG02674

Hearing Date: August 11, 2026 (Dept. 503)

Motion: By Defendants Hector Mario Alvarez, Jr. and Raul Alvarez to Quash Service of Summons; and to Set Aside

Tentative Ruling:

To grant in part as to defendant Hector Mario Alvarez, Jr. (Code Civ. Proc., § 418.10, subd. (a).) To deny in part as to defendant Raul Alvarez.

To set aside as to defendant Hector Mario Alvarez, Jr. only: the August 21, 2024, entry of default; the August 21, 2025, entry of default judgment; and the November 12, 2025, abstract of judgment. To recall the May 15, 2026, writ of execution as to defendant Hector Mario Alvarez, Jr. only.

Explanation:

Defendants Hector Mario Alvarez, Jr. and Raul Alvarez (together “Defendants”) seek relief under various provisions of the Code of Civil Procedure.

Quash Summons

Defendants seek to quash service of summons of the Complaint pursuant to Code of Civil Procedure section 418.10, subdivision (a)(1).

Code of Civil Procedure section 418.10, subdivision (a)(1) provides that a defendant, 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, may serve and file a notice of motion to quash service of summons on the ground of lack of jurisdiction of the court over him or her. Generally, the court in which an action is pending has jurisdiction over a party from the time summons is served on him. (Code Civ. Proc., § 410.50, subd. (a).) Here, the proof of service of summons, filed July 12, 2024, shows substitute service of summons on July 3, 2024 as to each of Defendants.

Whether a proof of service is void does not depend on evidence outside the face of the record. (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 182.) If such a defect can be shown on the face of the proof of service, the burden falls to the plaintiff to demonstrate effective service. (Dill v. Berquist Const. Co. (1994) 24 Cal.App.4th 1426, 1441.) Without such a defect, the filing of a proof of service creates a rebuttable presumption that service was proper. (Id. at pp. 1441-1442.) There are no discernable defects on the face of the proofs of service. Accordingly, the proofs of service are presumptively valid.

As to defendant Raul Alavarez (“Raul”)1, Raul concedes that he resides at 1574 South Lind Avenue, Fresno, California, 93727. (Raul Decl., ¶ 2.) Raul resides that the location with his wife, Blanca. (Ibid.) The proof of service of summons as to Raul indicated substitute service on a residence, leaving papers with an individual who identified as Blanca. The court finds that service of summons was effected as to Raul. Relief under Code of Civil Procedure section 418.10 is denied as to Raul.

As to defendant Hector Mario Alvarez, Jr. (“Hector”), Hector submits that he has never resided at the address on the proof of service, at 1574 South Lind Avenue, Fresno, California, 93727. (Hector Decl., ¶ 4.) Hector submits that he has never used the location to receive mail or as a place of business. (Id., ¶ 5.) Thus, the proof of service of summons as to Hector is sufficiently rebutted. Even were Hector acknowledges actual notice of the action in May 2025, service of process must conform to statutory requirements or all that follows is void. (Ruttenberg v.

Ruttenberg (1997) 53 Cal.App.4th 801, 808-809.) The motion to quash service of summons as to Hector is granted. The August 21, 2024, entry of default as to Hector is set aside. The August 21, 2025, entry of default judgment as to Hector is set aside. The November 12, 2025, abstract of judgment as to Hector is set aside. The May 15, 2026, writ of execution as to Hector is recalled.

Void Judgment

Raul seeks alternative relief under Code of Civil Procedure sections 473, subdivision (d) and 473.5, specifically under the court’s inherent authority. After six months from entry of default, a trial court may still vacate a default on equitable grounds even if statutory relief is unavailable. (Bae v. T.D. Service Co. of Arizona (2016) 245 Cal.App.4th 89, 97.) Such grounds include extrinsic fraud and extrinsic mistake. (Ibid.)

Extrinsic fraud occurs when a party is denied a fair adversary hearing because he has been deliberately kept in ignorance of the action or proceeding or in some other way fraudulently prevented from presenting his defense. (Bae v. T.D. Service Co. of Arizona, supra, 245 Cal.App.4th at p. 97.)

Extrinsic mistake is found when, among other things, a mistake leads a court to do what it never intended. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.) In other words, extrinsic mistake occurs when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits. (Bae v. T.D. Service Co. of Arizona, supra, 245 Cal.App.4th at pp. 97-98.)

Neither appear applicable here. Raul stated that his wife told him a man came and left papers for Raul. (Raul Decl., ¶ 3.) Raul read enough of the papers to recognize that they related to a dispute with plaintiff Fernando Valera over a venture and buy-out. (Ibid.) Neither of these are extrinsic factors. Rather, Raul specifically states that he did not understand or realize the implication of the documents he received. (Id., ¶¶ 3-7.) Ignorance generally is not an excuse. (E.g., People v. Snyder (1982) 32 Cal.3d 590, 592- 593 [“It is an emphatic postulate of both civil and penal law that ignorance of a law is no excuse for a violation thereof.”])

1 First names are used for clarity. No disrespect is intended.

Raul focuses instead on evidence submitted in support of the application for default judgment. None of these demonstrate why Raul did not act on the documents he received in July 2024. Further, as noted above, the proof of service of summons is confirmed by Raul. The motion is denied as to Raul under Code of Civil Procedure section 473, subdivision (d).

Finally, Raul seeks relief under Code of Civil Procedure section 473.5. Code of Civil Procedure section 473.5 provides, in pertinent part that:

When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action.

Here, service of the summons resulted in actual notice. Raul otherwise does not present any specific arguments as to these grounds. Code of Civil Procedure section 473.5 does not apply. The motion is denied as to Raul under Code of Civil Procedure section 473.5.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: JS on 8/10/2026. (Judge’s initials) (Date)

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