State Farm General Insurance Company vs. Lambert

9. State Farm General Insurance Company vs. Lambert 2012-00584705 Before the court is the motion of defendants Kelly Michelle VanSchaack and James Nathan VanSchaack (collectively, Defendants) to vacate void judgment. As more fully set forth below, the motion is DENIED WITHOUT PREJUDICE.

By this motion, Defendants seek to vacate the default judgment entered against them on May 24, 2013, and renewed on May 5, 2023. Defendants bring this motion under Code of Civil Procedure section 473, subdivision (d), claiming the judgment is void because they were never properly served with summons and complaint and only became aware of the case years later after judgment was entered.

The motion, however, is defective in at least two ways. First, the proof of service showing the motion was allegedly served on plaintiff State Farm General Insurance Company (Plaintiff) is defective and Plaintiff has not filed any opposition to demonstrate it actually received the motion or otherwise waived the service defect on the motion. The proof of service is defective because it is signed by defendant Kelly Michelle VanSchaack. Service must be made by and the proof of service signed by a person who is not a party to the action. (See, e.g., Code Civil Proc., § 1013a(3).)

The proof of service attached to the motion recognizes this requirement by stating the person signing it is “not a party to this action.” That statement, however, is clearly false in this case. Moreover, the proof of service purports to be by mail pursuant to ordinary business practices, but the proof lacks many of the statements required by Code of Civil Procedure section 1013a(3) for a valid proof of service pursuant to ordinary business practices. Indeed, section 1013a(3) sets forth several statements that must be included in a valid proof of service and many of them are lacking.

To the extent the declarant personally deposited the document in the mail, a different form of proof of service is required.

Second, Defendants fail to demonstrate this motion is timely. Defendants claim the judgment in this action is void based on extrinsic evidence—i.e., their declarations stating the addresses lists on the proofs of service are not valid and denying they ever received the summons and complaint—rather than void on its face. The Supreme Court recently did away with the requirement that such a motion must be brought within two years, but the Supreme Court left undisturbed that a defendant seeking such relief must still act with reasonable diligence upon learning of the judgment. (California Capital Ins. Co. v. Hoehn (2024) 17 Cal.5 th 207, 225-226 & fn. 11.)

Here, Defendants do not state when or how they learned of this case and the judgment. They simply state the “only became aware of this case years later, after a judgment had already been entered.” Based on the foregoing, the motion is DENIED WITHOUT PREJUDICE. The court clerk is directed to give notice of this ruling.