Motion by Defendant to Quash Service of Summons and to Set Aside and Vacate Default Judgment
DEPARTMENT SEVEN JUDGE TIM P. KAM 707-207-7307 TENTATIVE RULINGS SCHEDULED FOR FRIDAY, MAY 29, 2026 The parties may appear via Zoom with the exception of trials, trial management conferences, order for examinations and mandatory settlement conferences. The information for the Zoom meeting is set forth below.
The tentative ruling shall become the ruling of the court unless a party desiring to be heard contacts the judicial assistant of the department hearing the matter by 4:30 p.m. on the court day preceding the hearing, and further advises that such party has notified the other side of its intention to request a hearing. A party requesting a hearing must notify all parties of the request to be heard by 4:30 p.m.
WELLS FARGO BANK, N.A. vs. ERIK CARTER Case No. CL24-00657
Motion by Defendant to Quash Service of Summons and to Set Aside and Vacate Default Judgment
C.C.P. §473(e) authorizes a motion to vacate a default judgment void for lack of proper service at any time after entry of the judgment.
The threshold for such relief is a void/improper service of summons.
A proof of service for a summons that complies with statutory requirements creates a rebuttable presumption that service was proper. 1 Edmon & Karnow [Weil & Brown], Civil Procedure Before Trial (The Rutter Group 2025), §4:362, p. 66. “A declaration of service by a registered process server establishes a rebuttable presumption that the facts stated in the declaration are true.” 1 Edmon & Karnow [Weil & Brown], Civil Procedure Before Trial (The Rutter Group), §4:367, p. 66, citing Evidence Code §647.
One of the manners of service authorized for summons and complaint is substituted service. C.C.P. §415.20(b) authorizes substituted service by delivery if a copy of summons and complaint to the dwelling place of the person intended to be served, leaving it “in the presence of a competent member of the household or a person apparently in charge . . . at least 18 years of age”, and thereafter mailing another copy to that same address, addressed to the person intended to be served.
This is what the declaration of service by the registered process server who claims to have completed service says he did.
Defendant has not presented a declaration from his “longtime companion”, to dispute being contacted on the day and time of claimed service, and/or to dispute being informed of and/or handed a copy of the summons and complaint.
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Defendant’s declaration also does not foreclose the possibility that a different woman than his “longtime companion” answered the door when the process server came.
Finally, Defendant’s declaration does not assert that he did not receive a copy of the summons and complaint in the mail within a few days of this claimed substituted service. It also fails to dispute receiving other documents about the case in the mail, such as the request for entry of default, or the later request for default judgment by clerk, which Plaintiff’s counsel claims were mailed to him back in April and July 2025 at that same address (the very address Plaintiff listed as his current address on the motion papers).
Defendant’s motion also cited other statutes, whose relief is not dependent upon a showing that service of summons was void/improper. But Defendant has failed to meet the requirements of any of those statutes.
C.C.P. §473(b) authorizes a defendant within six months of entry of default and/or default judgment to move to set aside the default and/or default judgment, upon a showing of “mistake, inadvertence, surprise, or excusable neglect.” But Defendant offered no showing of “mistake, inadvertence, surprise or excusable neglect”. And his motion was filed in March 2026, almost a year after entry of default, and about 8 months after default judgment.
C.C.P. §473.5 authorizes a defendant to obtain relief from judgment when the summons does not result in actual notice. However, such a motion must be filed “within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against the party; or (ii) 180 days after service on the defendant of a written notice that the default or default judgment has been entered.” The moving defendant must also provide a declaration under penalty of perjury showing that his or her lack of actual notice “was not caused by the party’s avoidance of service or inexcusable neglect”, and a proposed answer or other responsive pleading.
The notices of entry of default and default judgment were mailed to Defendant in April and July 2025, respectively, more than 180 days from Defendant’s filing of this motion in March 2026 (nor did Defendant provide a proposed responsive pleading, nor attesting to not avoiding service or committing inexcusable neglect by not opening his mail, etc.).
Defendant’s motion to quash and set aside entry of default and default judgment is therefore denied.