| Case | County / Judge | Motion | Ruling | Indexed | Hearing |
|---|
Motion to obtain cellular phone records from Verizon or alternatively, to enforce deposition subpoena
For the reasons set forth below, the motion is GRANTED. “Under [Code of Civil Procedure] 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.” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.) A motion under section 473, subdivision (d) to vacate a judgment allegedly void for lack of service must be brought within a “reasonable time” after entry of default. (Weil & Brown, Cal. Prac. Guide: Civil Proc.
Before Trial (The Rutter Group 2025) ¶ 5:437.1, citing California Capital Ins. Co. v. Hoehn (2024) 17 Cal.5th 207, 212, 225-226 (disapproving prior authority that applied 2- year time limit to § 473(d) motions to vacate).) “[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.” (Kremerman v. White (2021) 71 Cal.App.5th 358, 371, internal quotes and citation omitted.) “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 facts requisite to an effective service.” (Summers v.
McClanahan (2006) 140 Cal.App.4th 403, 413.)
Jouini argues the default and possession judgment entered on November 2, 2021, and the default money judgment entered on August 3, 2023, are void for lack of personal jurisdiction because substituted service was not made in compliance with Code of Civil Procedure section 415.20, subdivision (b). The proof of service in this matter shows Jouini allegedly was served by substituted service at 15123 Brookhurst St. #176, Westminster, CA 92683 (Property) on September 30, 2021, by delivering copies of the documents to codefendant Mohamed Nouri. (ROA 13.)
A declaration of service by a registered process server establishes a presumption the facts stated in the declaration are true. (See Evid. Code, § 647
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Jouini attests he permanently vacated the Property in September 2018 and did not reside there after that date. (Jouini Decl., ¶ 2.) Jouni submitted proof of his residence in Anaheim and Oakland in 2019 through 2022. (Exhs. A-F to Jouini Decl.) Given Jouini’s evidence showing he moved from the Property permanently in September 2018, any attempt at substituted service at the Property would have been ineffective. (See Code Civ. Proc., § 415.20, subd. (b) [providing for substituted service to a competent member of a household or a person apparently in charge provided service is effected “at the person's dwelling house, usual place of abode, . . . or usual mailing address”].)
Jouini thus has shown he was not served with the summons in the manner prescribed by statute and the judgment is thus void as to Jouini. (Kremerman v. White (2021) 71 Cal.App.5th 358, 371.)
The motion also was filed within a reasonable time after entry of the default judgment. This motion was filed approximately four and a half years after the default judgment was entered. Given Jouini had moved from the Property and did not receive notice of the lawsuit until October 2025, the court finds the motion is reasonably made.
In the Opposition, assignee/judgment creditor Judgment Recovery Assistance, LLC (Judgment Creditor) points out in an unlawful detainer action a default judgment is properly entered against a defendant who was served by posting and mailing. (See Code Civ. Proc., § 415.45.) Service on Jouini, however, was not achieved by posting and mailing. Jouini was served by substituted service. Judgment Creditor thus was required to comply with the requirements of Code of Civil Procedure section 415.20, subdivision (b).
Judgment Creditor also contends Jouini failed to give notice to the landlord that Jouini vacated the premises. Judgment Creditor asserts a tenant who abandons a lease without notifying the landlord remains liable for the rent as it becomes due. Although this may be true, Judgment Creditor fails to explain how this means the substituted service effected on Jouini in this instance was proper. Liability and valid service of process are two entirely different things.
Judgment Creditor also argues equitable relief is not available because Jouini failed to demonstrate a meritorious defense and satisfactory excuse for not presenting a defense to the original action. Jouini does not seek relief based on the court’s equitable powers. Relief is sought pursuant to Code of Civil Procedure section 473, subdivision (d). Moreover, where service of the summons and complaint is invalid, it is not necessary to show a meritorious defense. (Weil & Brown, Cal. Prac. Guide: Civil Proc. Before Trial (The Rutter Group 2025) ¶ 5:494, citing Peralta v. Heights Med. Ctr. Inc. (1988) 485 U.S. 80, 86- 87.)
Based on the foregoing, the motion is GRANTED. The default and default judgments entered in this matter against Jouini are hereby VACATED. On its own motion, the court schedules an Order to Show Cause as to why the case should not be dismissed as to Jouini for failing to serve Jouini within 3 years of filing of the complaint. (Code Civ. Proc., §§ 583.210, 583.250, subd. (a)(2), 583.240.) The Order to Show Cause hearing is set for Thursday, July 16, 2026, at 2:00 p.m., in Department C23. Any opposition by Judgment Creditor must be filed and served by June 29, 2026, and any reply by Jouini must be filed and served by July 8, 2026. A status conference is set for the same time. Judgment Creditor’s counsel is ordered to give notice of this ruling
9. Petition of Interinsurance Exchange of the Automobile Club 2025-01529307
Before the court is the unopposed motion to obtain cellular phone records from Verizon or alternatively, to enforce deposition subpoena filed by petitioner Interinsurance Exchange of the Automobile Club (Petitioner). For the reasons set forth below, the motion is GRANTED. (Code Civ. Proc., § 1987.1, subd. (a).) Petitioner seeks to obtain cellular phone records for the phone number (949) xxx-8691, the number for Petitioner’s insured, Erin Elizabeth McReynolds (Ms. McReynolds) for the time period of August 1, 2025, through September 30, 2025, pursuant to a deposition subpoena issued to Verizon on January 5, 2026. Petitioner contends the records sought are relevant and reasonably necessary to process and investigate the claim submitted by Ms. McReynolds regarding a theft loss occurring on August 31, 2025.
Both Ms. McReynolds and Verizon were duly served with a copy of the instant motion, but no oppositions were filed. Moreover, Ms. McReynolds has signed a consent form for the release of the records and thus is agreeable to releasing the records. (Exh. B to Motion.) Ms. McReynolds also does not dispute the records are relevant and reasonably necessary to process and investigate the subject claim.
Based on the foregoing, the motion is GRANTED. Verizon is ordered to produce documents responsive to the deposition subpoena within 20 days of service of notice of this order. Petitioner is ordered to submit a proposed order in accordance with this ruling, and to give notice of this ruling.