Portfolio Recovery Associates, LLC, v. Coley

14. Coleman v. Monique, et al, Case No. CIVSB2414212 Defendant Nataly Manrique’s Demurrer 8/26/26, 9:00 a.m., Dept. S-17 The Court would SUSTAIN this unopposed demurrer with thirty days of leave to amend.

Here, Plaintiff filed a terse 3-page Complaint on April 23, 2024, asserting injury and property damage arising from a motor vehicle accident that occurred on April 22, 2022. In this unopposed demurrer, Defendant asserts that the two-year statute of limitations for personal injury bars the action. (See Code Civ. Proc., § 335.1.) The Complaint fails to allege any equitable tolling or address this apparent shortcoming.

Notably, the demurrer does not address the property damage statute of limitations. (See Code Civ. Proc., § 338.) The Court would sustain but grant leave to amend to allow Plaintiff an opportunity to address the statute of limitations issue.

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16. Portfolio Recovery Associates, LLC, v. Coley, Case No. CIVSB2214509 Defendant’s Motion to Set Aside Judgment 8/26/26, 9:00 a.m., Dept. S-17

This matter was continued from June 10, 2026 Tentative Ruling The Court would GRANT. Defendant’s general appearance is sufficient to submit him to the jurisdiction of the Court. A responsive pleading is due within twenty (20) days.

Case Summary This is a collections case. Plaintiff alleges maintained a credit account founded in writing with Plaintiff, with periodic billing, that required payment thereon. However, Plaintiff stopped paying on the account on February 10, 2020, leaving an open balance that is the subject of this suit.

On July 12, 2022, Plaintiff filed suit for (1) account stated and (2) open book account. Relevant here, on September 9, 2022, Plaintiff filed a proof of service (POS) stating that Defendant was served at his home address. (See Compl., ¶11 & Exh. A [billing showing address].) The POS indicates personal service on a “brown-haired white female”.

Following service, Plaintiff took Defendant’s default, and a default judgment was entered on April 20, 2023. Now, approximately three years later, Defendant filed this instant motion seeking to vacate the judgment. Defendant alleges service was improper.

Analysis

Code of Civil Procedure section 473, subdivision (d), 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 order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”

A default or default judgment entered against a defendant who was not served with a summons in the manner prescribed by the statute is void and may be set aside as a matter of law. (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.)

Here, as a starting point, the filed proof of service shows service by a registered process server. The return of a registered process server is entitled to an evidentiary presumption of the facts stated in the return. (Evid. Code, § 647; Palmer Properties Inv., LLC, v Yadegar (2011) 194 Cal.App.4th 1419, 1427.) Once the presumption is created, the burden shifts to the party contesting service to rebut the presumption through competent, contradictory evidence. (M. Lowenstein & Sons, Inc. v. Superior Court (1978) 80 Cal.App.3d 762, 770; also Los Angeles v. Morgan (1951) 105 Cal.App.2d 726, 731.).

Here, the declaration indicates that he is not a female and that the POS indicates service on a female. (See Coley Supp. Decl., ¶4.) Defendant offers no evidence, other than his own unsupported statements, to substantiate his claims that the address was improper or that the POS description of “female” was anything other than a scrivener’s error. For instance, a dated lease agreement or mailed bills from the at-issue time period would have substantiated whether the claimed address was incorrect.

For this reason, the matter was continued to allow additional briefing regarding Defendant’s residence. No additional briefing or declaration has been provided. However, the Court notes that there is a strong policy in favor of litigating a dispute on the merits. Notably, no opposition has been provided confirming the purported scrivener’s error. Given the liberal policy of deciding matters on their merits, the Court is inclined to grant the motion.

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