Judge Alison Mackenzie, Case Number: 21STCV23452, Date: 2024-08-30 Tentative Ruling

Plaintiff Emilio Garcia filed a complaint against Defendants Armando Soria, and Supreme Parking, asserting violations of California labor law. Garcia filed a proof of service showing a registered process server served the summons and complaint on Soria via substituted service at Soria’s place of business. On February 4, 2022, the Court entered a default judgment against Soria and Supreme Parking.

Soria moves to set aside the default judgment.

The Court denies the motion.

“Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.” AO Alfa-Bank v. Yakovlev (2018) 21 Cal.App.5th 189, (citation omitted) (internal quotation marks omitted). “[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.” American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 387 (quoting, Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444) (internal quotations omitted).

1. Whether the Motion is Timely

Code of Civil Procedure section 473.5 limits the period of time to bring a motion to set aside a judgment based on lack of actual notice to no later than two years after entry of judgment. “Where a party moves under section 473, subdivision (d), to set aside a judgment that, though valid on its face, is void for lack of proper service, the courts have adopted by analogy the statutory period for relief from a default judgment provided by section 473.5, that is, the two-year outer limit.” Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180 (citation omitted) (internal quotation marks omitted). However, “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 or resulted from extrinsic fraud or mistake.” County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1228 (citations omitted). “When a default judgment has been obtained, equitable relief may be given only in exceptional circumstances.” Rappleyea v. Campbell (1994)

Because Soria’s motion to set aside the default is brought more than two years after entry of judgment, the Court may only grant the motion if it finds the default resulted from extrinsic fraud or mistake and warrants equitable relief.

2. Whether the Default was the Result of Extrinsic Fraud or Mistake.

Extrinsic fraud occurs when a party is “denied a fair adversary hearing because he has been “deliberately kept in ignorance of the action or proceeding … by fraud or deception practiced on him by his opponent, as by keeping him away from court…” Kulchar v. Kulchar (1969) 1 Cal.3d 467, 471 (citation omitted) (internal quotation marks omitted). Extrinsic mistake occurs “when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits.” Rappleyea, supra, 8 Cal.4th at p. 981. “[E]xtrinsic mistake exists when the ground of relief is not so much the fraud or other misconduct of one of the parties as it is the excusable neglect of the defaulting party to appear and present his claim or defense. Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 47.

Soria argues that extrinsic fraud or mistake occurred because the process server improperly served substitute service on the parking booth attendant outside Soria’s place of business, rather than on someone in his business suite and the parking booth attendant never informed him of the lawsuit. Alverez Decl. ¶¶ 2,3. Soria submits that the attendant never gave him the summons and complaint and never told him about the lawsuit. Soria Decl. ¶ 6

The Court finds that no extrinsic fraud occurred.

In Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750, the court properly found no extrinsic fraud where defendant failed to rebut the presumption that the defendant was properly served by substitute service. The return of a registered process server “upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.” Evid. Code. Section 647. California Code of Civil Procedure section 415.20, subdivisions (a) and (b), authorize substitute service of process in lieu of personal delivery. Substitute service allows the process server to deliver the documents to an adult, “apparently in charge,” at defendant’s place of business and requires subsequently mailing the documents to the same location. A person “apparently in charge” is viewed liberally. See Bein v. Brechtel-Jochim Group, Inc.¿(1992) 6 Cal.App.4th 1387, 1393 (holding a gate guard was a person apparently in charge for the purpose of substitute service). Code of Civ. Proc. section 415.2., subd. (b).

Here, a registered process server delivered the summons and complaint to Brandon Alvarez, who they identified as the individual apparently in charge at 3680 Wilshire Blvd., Suite T11, Los Angeles California, the registered address for Supreme Parking. The process server subsequently mailed the summons and complaint to the same address via first-class mail. Accordingly, they satisfied the requirements of section 415.20, subdivision (b).

Soria’s argues that the proof of service is invalid because it was not delivered to 3680 Wilshire Blvd., Suite T11, but to Alvarez while he was attending the parking booth at 3680 Wilshire Blvd. Alverez Decl. ¶ 3. This argument is without merit. Just as a guard outside of a gated community may be “a person apparently in charge” of a place of business within that community, so can parking booth attendant outside of an office. See Bein, supra, 6 Cal.App.4th at 1393.

The Court likewise finds no extrinsic mistake.

“The court’s ability to grant relief under its inherent power is narrower than its ability to grant relief under section 473, subdivision (b). This is especially true after a default judgment has been entered. A party who seeks to set aside a default judgment pursuant to the court’s equity power must make a substantially stronger showing of the excusable nature of his or her neglect than is necessary to obtain relief under … section 473.” Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13, 29 (citations omitted) (internal quotations omitted). Equitable relief is not available when defendant’s default was the result of their own negligence. Id. at 20.

To set aside a judgment based upon extrinsic mistake the defaulting party must (1) articulate a satisfactory excuse for not presenting a defense to the original action, (2) demonstrate that it has a meritorious case, and (3) demonstrate diligence in seeking to set aside the default once discovered. Rappleyea v. Campbell, supra, 8 Cal.4th at 982.

The Court finds Soria has failed to articulate a satisfactory excuse for not presenting a defense to the original action.

Soria does not specify which act or omission here constitute extrinsic mistake, but merely asserts that he lacked actual notice. Because he has failed to refute the presumption of service, the Court assumes that Soria received the summons and complaint that the process server mailed to him. Accepting, for the sake of argument, that Soria lacked actual notice of the lawsuit, the Court concludes that it was the result of his own negligence.