Motion to vacate default and default judgment
Accordingly, the motions are GRANTED.
The orders granting relief are effective upon filing of a proof of service of the signed orders on the clients.
Moving counsel shall submit amended proposed orders that list the current trial date.
Moving counsel is ordered to give notice of these rulings.
2. Stewart v. Three Phase Before the Court is a motion by Defendants Kimberly Weiss and Three Electric, Inc. Phase Electric, Inc. to vacate the default and default judgment entered 22-1248530 against them. The motion is GRANTED, as set forth herein.
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.”
Even where relief is no longer available under statutory provisions, a trial court generally retains the inherent power to vacate a default judgment or order on equitable grounds where a party establishes that the judgment or order was void for lack of due process (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 488) or resulted from extrinsic fraud or mistake. (Olivera v. Grace (1942) 19 Cal.2d 570, 576-578; Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1300 (citing text); Bae v. T.D. Service Co. (2016) 245 Cal.App.4th 89, 97.)
“ ‘[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.] Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. [Citation.]’ [Citation.]’ Under section 473, subdivision (d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service. [Citations.]” (
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“When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.’ ” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413; Footnote 35 omitted.)
Here, the proof of service at ROA 12 states that on 3/9/22, plaintiff personally served Three Phase Electric, Inc. by serving “CSC – Lai Saevang – Person Authorized to Accept Service of Process” at 2710 Gateway Oaks Drive, Suite 150N, Sacramento, CA 95833 at 1:39 p.m. Defendants submit evidence showing “That person is not, and has never been, an officer, employee, or authorized agent for service of process for Three Phase Electric, Inc. The address listed is not, and has
never been, our corporate office or mailing address.” (Weiss Decl. ¶3) The declaration submitted by plaintiff’s attorney, Vasu Vijayraghavan, does not attempt to explain why CSC in Sacramento was served with the complaint. Instead, in the opposition, plaintiffs discuss attempts to serve the defendants with various documents in 2025 and 2026. These arguments are not persuasive and do not establish that Three Phase Electric, Inc. was served with the summons in 2022.
The proof of service at ROA 10 states that on 3/14/22 at 1:11 p.m. at 28 Rancho Cir., Lake Forest, CA 92630, plaintiff personally served Kimberly Weiss individually and as corporate officer of Three Phase Electric. Ms. Weiss states that she was not present at 28 Rancho Cir., Lake Forest, CA 92630 at 1:11 p.m. on 3/14/22. She states she was at Nordstrom getting a dress tailored for her son’s wedding. (Weiss Decl. ¶4) She has submitted an email confirmation from Nordstrom stating that she had a 30 minute appointment on 3/14/22 beginning at 1:00 p.m. at “Nordstrom The Shops at Mission Viejo” for “Women’s Alterations Fitting.” (Exh. B to Weiss Decl.)
In their opposition, plaintiffs fail to show the summons was served on Kimberly Weiss in any capacity. Plaintiff argues that Weiss’s absence from the company’s office at the time stated on the proof of service constituted “inexcusable neglect” in the form of “a CEO prioritizing a ‘dress fitting’ to accomplishing her role as CEO.” (Opp. at 5:6-9) This argument is not persuasive.
Based on the foregoing, the Court finds the summons and complaint were not properly served on defendants Kimberly Weiss and Three Phase Electric, Inc.
Therefore, the motion is GRANTED. The judgment entered on March 17, 2023 at ROA 40 and the default entered on June 27, 2022 at ROA 17 are VACATED.
The Defendants’ verified Answer at ROA 101 is deemed filed and served as of this date.
Defendants are ordered to give notice.
3. Kim v. Cho Before the Court is a motion by defendant Bong Nam Cho to set aside 1482420 the entry of default. The motion is GRANTED, as set forth herein.
In this motion, Mr. Cho seeks to set aside the default entered by Plaintiff John Kim on December 23, 2025, as shown in ROA 15.
Code of Civil Procedure §473(b) states, in pertinent part, “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”