Zula Tucker Living Trust v. Elizabeth C. Knight, et al.

have claims resolved by a jury trial, and also that judicial appeal rights, if any, are more limited in arbitration than they would be in court." (Decl., Justus Hardy, Ex. A, P. 16).

Therefore, the burden shifts to Plaintiff to show she did not enter into the agreement or that the arbitration clause should not be enforced. Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165-166; Rice, supra, 247 Cal.App.4th at 1223.

Plaintiff did not meet her burden to show that she did not enter into the agreement or that the arbitration agreement should not be enforced. Plaintiff filed no written opposition to this motion.

Therefore, the Motion to Compel Arbitration is granted. The Court action is ordered stayed pending completion of arbitration. An OSC re: status of arbitration is set for _________. Defendant is ordered to give notice of this ruling.

LOS ANGELES SUPERIOR COURT - SOUTHWEST DISTRICT Honorable Amy N. Carter Department M Thursday, September 10, 2026 Calendar No. PROCEEDINGS Zula Tucker Living Trust v. Elizabeth C. Knight, et al.

1. Justus Knight's, Administrator of the Estate of Elizabeth C. Knight, Motion to Set Aside the Default and Void Default Judgment

Justus Knight's, Administrator of the Estate of Elizabeth C. Knight, Motion to Set Aside the Default and Void Default Judgment is granted.

Background

Plaintiff filed the Complaint on January 20, 2015. Plaintiff alleges that Defendant Elizabeth C. Knight failed to pay on two promissory notes. Defendant's default was entered on July 6, 2015. On July 17, 2015, default judgment was entered for $160,902.56.

Motion to Set Aside Default

CCP Sec. 473(b) states, in relevant 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. . . .

Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.

The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. . . ."

Code Civ. Proc., Sec. 473(c)(1) states: "Whenever the court grants relief from a default, default judgment, or dismissal based on any of the provisions of this section, the court may do any of the following: (A) Impose a penalty of no greater than one thousand dollars ($1,000) upon an offending attorney or party. (B) Direct that an offending attorney pay an amount no greater than one thousand dollars ($1,000) to the State Bar Client Security Fund. (C) Grant other relief as is appropriate."

CCP Sec. 473.5(a) states, in relevant part: "When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered."

CCP Sec. 473.5(b) states: "A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action."

The phrase "actual notice" means "genuine knowledge of the party litigant" and does not include constructive or imputed notice to the client. Tunis v. Barrow (1986) 184 Cal.App.3d 1069, 1077.

"After six months from entry of default, a trial court may still vacate a default on equitable grounds even if statutory relief is unavailable. . . . One ground for equitable relief is extrinsic mistake--a term broadly applied when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits. Extrinsic mistake is found when [among other things] ... a mistake led a court to do what it never intended[.] When a default judgment has been obtained, equitable relief may be given only in exceptional circumstances. [W]hen relief under section 473 is available, there is a strong public policy in favor of granting relief and allowing the requesting party his or her day in court.

Beyond this period there is a strong public policy in favor of the finality of judgments and only in exceptional circumstances should relief be granted. . . . To set aside a judgment based upon extrinsic mistake one must satisfy three elements. First, the defaulted party must demonstrate that it has a meritorious case. Second[], the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Last[], the moving party must demonstrate diligence in seeking to set aside the default once ... discovered."

Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981-82 (internal citations and quotations omitted; emphasis in original).

CCP Sec. 473(d) empowers the Court to set aside any judgment that is void as a matter of law, e.g., lack of subject matter jurisdiction; lack of personal jurisdiction; lack of proper service of the summons and complaint; or the judgment violated due process rights. See Dhawan v. Biring (2015) 241 Cal.App.4th 963, 973-74; See also Ellard v. Conway (2001) 94 Cal.App.4th 540, 544; See also Heidary v. Yadollahi (2002) 99 Cal.App.4th 857, 862-64.

"It is well settled that a judgment or order which is void on its face, and which requires only an inspection of the judgment roll or record to show its invalidity, may be set aside on motion, at any time after its entry, by the court which rendered the judgment or made the order." Hiroko Kawakita Hayashi v. Lorenz (1954) 42 Cal.2d 848, 851.

"Code of Civil Procedure section 473, subdivision (d) (hereafter section 473(d)), provides in relevant part that a court "may ... on motion of either party after notice to the other party, set aside any void judgment or order." Under this provision, a party may move to vacate a judgment on the ground of improper service of process." California Capital Insurance Company v. Hoehn (2024) 17 Cal.5th 207, 212.

"Mistake is not a ground for relief under section 473, subdivision (b), when the court finds that the 'mistake' is simply the result of professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law. Further, the term surprise, as used in section 473, refers to some condition or situation in which a party is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against. Finally, as for inadvertence or neglect, to warrant relief under section 473 a litigant's neglect must have been such as might have been the act of a reasonably prudent person under the same circumstances.

The inadvertence contemplated by the statute does not mean mere inadvertence in the abstract. If it is wholly inexcusable it does not justify relief. It is the duty of every party desiring to resist an action or to participate in a judicial proceeding to take timely and adequate steps to retain counsel or to act in his own person to avoid an undesirable judgment. Unless in arranging for his defense he shows that he has exercised such reasonable diligence as a man of ordinary prudence usually bestows upon important business his motion for relief under section 473 will be denied.

Courts neither act as guardians for incompetent parties nor for those who are grossly careless of their own affairs. The only occasion for the application of section 473 is where a party is unexpectedly placed in a situation to his injury without fault or negligence of his own and against which ordinary prudence could not have guarded." Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206 (internal citations and quotations omitted).

Code Civ. Proc., Sec. 415.20 states, in relevant part: "(a) In lieu of personal delivery of a copy of the summons and complaint to the person to be served as specified in Section 416.10, 416.20, 416.30, 416.40, or 416.50, a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address, other than a United States Postal Service post office box, with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left.

When service is effected by leaving a copy of the summons and complaint at a mailing address, it shall be left with a person at least 18 years of age, who shall be informed of the contents thereof. Service of a summons in this manner is deemed complete on the 10th day after the mailing."

Code Civ. Proc., Sec. 418.10 states, in relevant part: "(a) A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her."

"Section 418.10, subdivision (a) (Sec. 418.10(a)), entitles a defendant to move to quash "on or before the last day of [the movant's] time to plead or within any further time that the court may for good cause allow." In re Marriage of Obrecht (2016) 245 Cal.App.4th 1, 16.

"The notice shall designate, as the time for making the motion, a date not more than 30 days after filing of the notice. The notice shall be served in the same manner, and at the same times, prescribed by subdivision (b) of Section 1005. The service and filing of the notice shall extend the defendant's time to plead until 15 days after service upon him or her of a written notice of entry of an order denying his or her motion, except that for good cause shown the court may extend the defendant's time to plead for an additional period not exceeding 20 days." Code Civ. Proc., Sec. 418.10(b).

"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." Evid. Code, Sec. 647.

Defendant moves to set aside the default and default judgment on the grounds that former Defendant decedent Elizabeth Knight was not properly served. Defendant states as follows: "Elizabeth Knight never lived at the address where Plaintiff claims to have served her, and which did not result in actual service on Defendant. Defendant contends that the judgment is void and any funds collected based on the judgment must be returned to Defendant's Estate. Further, the discharge of Elizabeth C. Knight's bankruptcy and the Court's dismissal of Fred Tucker's Non dischargeability complaint entitles the Estate of Elizabeth C.

Knight to recoup the funds from Fred Tucker as Trustee of the Zula Tucker Living Trust, which was turned over to Fred Tucker is a violation of 11 U.S.C. Sec.Sec.727 and 523. Once the debts were discharged and Tucker's non dischargeability complaint was dismissed with prejudice, the bank levy should have been released and the funds turned over to the Estate of Elizabeth C. Knight." (Notice of Motion, p. 2, lines 11-20).

Defendant has adequately established that the entry of default is void based on lack of proper service. The proof of service indicates that former Defendant decedent Elizabeth C. Knight was served by substitute service upon an individual only identified as "Rick, Grandson of Elizabeth Knight" at the following address - 28398 Rey De Copas Lane, Malibu, CA 90265 on March 26, 2015 at 11:10 (A.M. or P.M. was not identified). Thereafter, the summons and complaint was allegedly mailed to this address on the same date.

Defendant, the administrator of the Estate and the son of decedent, states that decedent did not reside at that address and has no grandsons at all. Defendant states that the property where the summons and complaint was served was an investment property and that decedent did not reside at that address. (Decl., Justus Knight, P.P. 2-3).

Defendant has sufficiently established that the default is void due to lack of proper service of the summons and complaint. When a Defendant challenges the Court's personal jurisdiction on the grounds of improper service of process the burden is on the Plaintiff to prove the facts of effective service." Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413. Plaintiff must meet this burden by a preponderance of the evidence. See Ziller Elec. Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1232.

Plaintiff has not met his burden to establish facts of effective service. "In the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court's personal jurisdiction over a defendant." Dill v. Berquist Const. Co., Inc. (1994) 24 Cal.App.4th 1426, 1439.

"A party cannot be properly joined unless served with the summons and complaint; notice does not substitute for proper service. Until statutory requirements are satisfied, the court lacks jurisdiction over a defendant." Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.

"Service of a substantially defective summons does not confer jurisdiction over a party and will not support a default judgment. Notice of the litigation does not confer personal jurisdiction absent substantial compliance with the statutory requirements for service of summons." MJS Enterprises, Inc. v. Super. Ct. (1984) 153 Cal.App.3d 555, 557 (internal citations omitted).

Plaintiff filed a late written opposition to this motion. However, no declaration was submitted from the process server, who allegedly effectuated service, to establish sufficient substitute service. In addition, the person who allegedly effectuated service is not a registered process server, and, thus, the presumption of proper service found in Evidence Code Sec. 647 is not available in this case. In addition, Plaintiff submitted no other form of competent evidence to show that service was properly effectuated.

Instead, Plaintiff invokes laches due to the delay in filing this motion and based on Defendant's filing of a claim of exemption. However, here, the motion is based on an alleged void judgment and was not brought pursuant to the equitable power of the Court. "[W]here it is shown that there has been a complete failure of service of process upon a defendant, he generally has no duty to take affirmative action to preserve his right to challenge the judgment or order even if he later obtains actual knowledge of it because [w]hat is initially void is ever void and life may not be breathed into it by lapse of time.

Consequently under such circumstances, neither laches nor the ordinary statutes of limitation may be invoked as a defense" against an action or proceeding to vacate such a judgment or order. And, where evidence is admitted without objection that shows the existence of the invalidity of a judgment or order valid on its face, it is the duty of the court to declare the judgment or order void. [P.] Nonetheless, a court sitting in equity in such situation may refuse to exercise its jurisdiction in a proper case by declining to grant affirmative relief, such as where (1) The party seeking relief, after having had notice of the judgment, manifested an intention to treat the judgment as valid; and (2) Granting the relief would impair another person's substantial interest of reliance on the judgment.

Because of the strong public policy in favor of the finality of judgments, equitable relief from a default judgment or order is available only in exceptional circumstances." County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1229-1230 (internal citations and quotations omitted).

Because the motion is granted based on a void judgment, the Court cannot invoke the equitable power of the Court to decide whether Defendant's delay warrants the denial of this motion. As to Defendant's arguments that any funds collected must be returned, the Court merely notes that, of course, without a valid judgment, Plaintiff would not have been able to collect any money in pursuit of that judgment. Other than this, the Court has no comment on the various arguments and defenses made by Defendant with respect to the bankruptcy discharge as it is not appropriate in a motion to set aside the entry of default.

The Court does note, however, that, contrary to Defendant's arguments, Plaintiff never obtained a Court order from this Court pursuant to his previously filed motion to release funds. That motion was eventually taken off calendar.

Therefore, Defendant's Motion to Set Aside Default and Void Default Judgment is granted. Defendant is ordered to give notice of this ruling. | Home -->