Motion to Set Aside/Vacate Default Judgment
2025CLBC043246: ROGER ZIERENBERG vs RICHARD KEMPSON, et al. 05/18/2026 in Department 21 Motion to Set Aside/Vacate Default Judgment
Tentative Rulings. Parties and counsel appearing for oral argument should address the tentative decision. Parties may submit on the tentative decision by email, with a copy to all other parties in the matter, to courtroom21@ventura.courts.ca.gov before 8:00 a.m. on the day set for the hearing, with a subject line that includes SUBMISSION ON TENTATIVE, Case Number, Title and Party. If fewer than all parties submit on the tentative, the hearing will proceed, and the tentative ruling is subject to change. The clerk cannot advise if you should still appear or not. The decision of whether to appear for a hearing is to be made by the parties and their counsel. (Dept. 21 Rules & Procedures, p. 4, § II.I.)
The following is a statement of the Courts tentative ruling. The Court may adopt, modify or reject the tentative ruling after hearing. The tentative ruling has no legal effect unless and until adopted by the Court.
Motion: Motion by Defendants Richard Kempson and Debra Sue Kempson-Steele (collectively, Defendants), pro per, to vacate default and default judgment (opposed).
Tentative Ruling: Defendants motion to vacate default and default judgment is GRANTED.
Plaintiffs request for attorney fees incurred in opposing this motion is DENIED.
Discussion:
To begin, Plaintiffs arguments concerning the absence of a proposed answer and failure to show excusable neglect are misplaced. The basis for this motion is that the default and default judgment are void, which is governed by CCP § 473, subdivision (d). That subdivision requires neither a showing of excusable neglect nor a proposed answer. Only subdivision (b) includes that requirement. Likewise, Defendants were not required to file this motion within six months.
On the merits, although not addressed in the motion, a valid proof of service creates a rebuttable presumption that the service was proper. (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441; see also Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795
Looking for case law or statutes not cited here? Search published authorities
Examples: “Why did the court rule this way?” · “What were the procedural grounds?” · “Is appearance required?”
Here, the proofs of service of the summons and complaint are facially defective. Even if the proofs of service correctly state that Jeff Borne had authority to accept service, there is no statute that would allow Plaintiffs process server to personally serve the papers on the owner of
2025CLBC043246: ROGER ZIERENBERG vs RICHARD KEMPSON, et al.
mailbox facility, by having that person execute a declaration of service by mail to the same address.
In any event, Defendants have submitted sufficient evidence in opposition to rebut the presumption that Jeff Borne had authority to accept service. Therefore, regardless of whether the unusual method of service is permitted, service has not been effectuated on Defendants.
Defendants have also submitted sufficient evidence to show that they did not receive notice of this lawsuit with sufficient time to file a responsive pleading.
In sum, Defendants have shown that they are entitled to relief from default and default judgment on the grounds that the Court lacks personal jurisdiction over them due to improper service.
Plaintiff requests attorney fees in opposing this motion. This request is denied.
Conclusion: Defendants motion for relief is GRANTED.
2