Motion to Set Aside Entry of Default and Default Judgment
TENTATIVE RULINGS 5-29-26 Department R17- Judge Gilbert G. Ochoa
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ROBBI CARTER
v.
AMARI JONES
Motion(s): Motion to Set Aside Entry of Default and Default Judgment
Movant(s): Defendant Amari Jones
Respondent(s): Plaintiff Robbi Carter
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DISCUSSION
Plaintiff’s Objection to Declaration of Jaimee Deegan
With his reply, Defendant separately filed the declaration of Jaimee Deegan, a claims
adjuster for Mercury Insurance Group. Plaintiff objects to the declaration arguing it is improper
for the Court to consider new evidence provided in reply papers.
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The Court DENIES Plaintiff’s objection. Deegan’s declaration is not “new evidence” as
the declaration is also included as Exhibit C to Defendant’s moving papers.
Legal Standard
Under Code of Civil Procedure section 473, subdivision (d), the Court may set aside a void
judgment or order. A judgment/order is void if the court lacks subject matter or personal
jurisdiction or grants relief that it lacks the power to grant. (Becker v. S.P.V. Construction Co.
(1980) 27 Cal.3d 489, 493.)
A party may also move to set aside a default or default judgment under Code of Civil
Procedure section 473.5, “[w]hen service of a summons has not resulted in actual notice to a party
in time to defend the action...” (Code of Civ. Proc., § 473.5, subd. (a).)
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 (Dill).) A void judgment,
whether on its face or not, may be set aside at any time. (California Capital Insurance Company
v. Hoehn (2024) 17 Cal.5th 207, 212, 214, 226.)
The service of summons is the process by which the court acquires jurisdiction over a
defendant in a civil action. Without substantial compliance with the statutory requirements for
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service, personal jurisdiction is not conferred even if the defendant has notice of the litigation.
After making a reasonably diligent effort to personally serve a defendant, substitute service
may be made on an individual 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.”
(Code Civ. Proc., § 415.20, subd. (b).) A person’s “dwelling house or usual place of abode” is the
location that the person holds out as their principal residence and where he or she is most likely to
receive actual notice. (Zirbes v. Statto (1986) 187 Cal.App.3d 1407, 1415-1417.) A person’s
“usual mailing address” need not be his or her home or place of business. (Hearn v. Howard
(2009) 177 Cal.App.4th 1193; 1201-1202.) Further, a party seeking service on a defendant is not
required to exhaust all available avenues to determine the defendant’s current address;
“[c]ontacting the United States Postal Service [is] sufficient.” (Ellard v. Conway (2001) 94
Cal.App.4th 540, 545.)
Finally, there is a strong policy in favor of litigating a dispute on the merits and courts
generally disfavor judgment by default. (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 134.)
Analysis
Defendant argues that the defaults taken against him are void because he was never
properly served with the summons and complaint. Defendant states that when substitute service
was made at the Firethorn property (April 4, 2023), he did not live or receive mail at that address.
(Jones Decl. ¶¶ 2, 8.) Defendant states that from 2019 to June of 2023, he lived, and received mail,
at an address in El Cajon, California. (Jones Decl. ¶ 5.) Since June of 2023, Defendant has lived
at 9420 N. 50th Street in Tampa, Florida. (Jones Decl. ¶ 6.)
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In opposition, Plaintiff argues that the Firethorn address was on Defendants’ driver’s
license and vehicle documentation that he presented to Plaintiff on September 29, 2020, when the
accident occurred. (Carter Decl. Exs A, B.) As a result, Plaintiff argues that the address was
appropriate for service on Defendant.
Plaintiff also asserts that because she filed the proof of service, there is a rebuttable
presumption that service was proper. Plaintiff argues that Defendant’s evidence cannot overcome
this presumption because Defendant claims he has not lived at the Firethorn address since 2016,
but the driver’s license Defendant presented to Plaintiff at the time of the accident was issued in
2019 and contained the Firethorn address.
In general, the filing of a proof of service creates a rebuttable presumption that service was
proper. But the presumption arises only if the proof of service complies with applicable statutory
requirements. (Dill, supra, 24 Cal.App.4th at pp. 1441-1442.) The effect of such a rebuttable
presumption 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 non-existence, in which case the
trier of fact shall determine the existence or non-existence of the presumed fact from the evidence
and without regard to the presumption.” (Evid. Code, § 604.)
In addition, Evidence Code section 647 provides: “The 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.”
While Plaintiff’s argument may create some doubt regarding where Defendant lived when
the accident occurred, Defendant’s sworn statement that over two years after the accident he did
not live or receive mail at the Firethorn address is sufficient to overcome the presumption that
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service was proper at that address. Thus, the burden is on Plaintiff to show that in 2023, the
Firethorn address was a proper location to serve Defendant.
Other than showing that the Firethorn address was on Defendant’s driver’s license and
vehicle documentation in 2020, and arguing that documents sent to the Firethorn address during
the litigation were not returned as undeliverable, Plaintiff does not present any evidence to show
that in 2023, Defendant lived at the Firethorn address or received mail there. Plaintiff also does
not present any evidence to show that she made any effort to verify Defendant’s correct address
before attempting service or that the Firethorn address was a valid address for service on
Defendant.
Plaintiff does not establish that she exercised reasonable diligence in attempting to
personally serve Defendant at a proper address prior to resorting to substitute service. Further,
Plaintiff does not establish that substitute service was made at Defendant’s “dwelling house, usual
place of abode, usual place of business, or usual mailing address.” As a result, service on
Defendant was not valid under Code of Civil Procedure section 415.20, subdivision (b), and the
default and default judgment entered against Defendant are void as a matter of law.
Therefore, the Court grants Defendant’s motion to set aside the default and default
judgment.2
2 In their papers, the parties reference settlement discussions between Plaintiff’s counsel and Defendant’s insurance carrier presumably to address Defendant’s knowledge of the lawsuit and his request for relief under Code of Civil Procedure section 473.5. However, section 473.5 and Defendant’s knowledge are not pertinent to the analysis here because there was no valid service. Without valid service, personal jurisdiction is not conferred even if a defendant has notice of the litigation. (MJS Enterprises Inc. v. Superior Court, supra, 153 Cal.App.3d at p. 557.) Page | 10
Ruling
(1) Grant Defendant Amari Jones’ motion to set aside entry of default and default judgment
and set aside the November 30, 2023, entry of default and March 28, 2025, default
judgment.
(2) Overrule Plaintiff’s objection to the Declaration of Jaimee Deegan. The declaration
was included as Exhibit C to Defendant Jones’ moving papers and is not new evidence.
Movant to give notice.
Dated-
____________________________ Judge
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