Judge: Anne Hwang, Case: 22STCV19216, Date: 2024-05-31 Tentative Ruling

Case Number: 22STCV19216    Hearing Date: May 31, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

On June 13, 2022, Plaintiff MCI Communications Services, Inc. (“Plaintiff”) filed a complaint against Defendants Ginz & Associates, Inc. (“Defendant”) and Does 1 to 10 for an alleged damage to personal property.  

On November 9, 2022, Plaintiff filed a proof of service of the complaint on Defendant’s registered agent via substitute service.

On December 19, 2022, default was entered against Defendant.

On September 29, 2023, the Court granted default judgment against Defendant for $35,187.96 in damages and $564.97 in costs.

On October 31, 2023, Defendant filed a notice of appeal of the default judgment. Then, on February 26, 2024, the Court of Appeal dismissed the appeal without prejudice, for failure to file and serve a notice of representation.

On March 27, 2024, Defendant filed the instant motion to set aside the default and default judgment based on Code of Civil Procedure sections 473(d) and 473.5, and equitable relief. No opposition has been filed.  

LEGAL STANDARD

“Generally, a party who has not actually been served with summons has three avenues of relief from a default judgment.” (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180.) First, they may move under Code of Civil Procedure sections 473.5 (applied where service was proper but did not result in actual notice) or section 473(d) (judgment is valid on its face but void due to improper service). (Id.) Second, the party may seek equitable relief showing “that extrinsic fraud or mistake exists, such as a falsified proof of service, and such a motion may be made at any time, provided the party acts with diligence upon learning of the relevant facts.” (Id. at 181.) These first two methods “generally hinge on evidence about the method of purported service.” (Id.) Lastly, the party may move under section 473(d) that the default judgment is facially void. (Id.)

Section 473.5

Under Code of Civil Procedure section 473.5, “[w]hen 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.” ¿This motion must be brought “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.” (Code Civ. Proc. § 473.5(a).)  

¿¿¿ 

The focus of section 473.5 is whether the defaulting party obtained actual notice in time to defend the action.¿“Discretionary relief based upon a lack of actual notice under section 473.5 empowers a court to grant relief from a default judgment where a valid service of summons has not resulted in actual notice to a party in time to defend the action.”¿ (Anastos v. Lee (2004) 118 Cal.App.4th 1314, 1319.)¿“A party seeking relief under section 473.5 must provide an affidavit showing under oath that his or her lack of actual notice in time to defend was not caused by inexcusable neglect or avoidance of service.”¿(Ibid.; Code Civ. Proc. § 473.5(b).)¿The term “actual notice” means “genuine knowledge of the party litigant.”¿(Rosenthal v. Garner (1983) 142 Cal.App.3d 891, 895.)¿ 

DISCUSSION

As an initial matter, the record does not show that Plaintiff served written notice of the entry of default or granting of default judgment, on Defendant. Plaintiff has received notice of this motion and has not filed an opposition setting forth facts to the contrary. Therefore, the deadline for bringing this motion under section 473.5 is two years after the default judgment was granted: September 29, 2025. Since Defendant filed this motion on March 27, 2024, it is timely.

Defendant argues that Godfrey Nzeogu is the registered agent for Defendant. The proof of service shows that on October 10, 2022, Defendant was served by substitute service at a UPS store that contains a rented mailbox for Defendant. (Proof of Service, filed 11/9/22.) The proof of service indicates that the summons and complaint were served on “Tim ‘Doe’ (Declined Full Name), Clerk, UPS Store (person apparently in charge) Description: Hispanic, Mail, 30+ yrs old, 5’ 6’’ tall, 150 lbs., Black hair.”

“A summons may be served on a corporation by delivering a copy of the summons and the complaint by any of the following methods:

(a) To the person designated as agent for service of process as provided by any provision in Section 202, 1502, 2105, or 2107 of the Corporations Code . . . (b) To the president, chief executive officer, or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a controller or chief financial officer, a general manager, or a person authorized by the corporation to receive service of process.” (Code Civ. Proc. § 416.10.)

“[I]f the only address reasonably known for the person to be served is a private mailbox obtained through a commercial mail receiving agency [CMRA], service of process may be effected on the first delivery attempt by leaving a copy of the summons and complaint with the commercial mail receiving agency in the manner described in subdivision (d) of Section 17538.5 of the Business and Professions Code.” (Code Civ. Proc. § 415.20(c).)  

Business and Professions Code section 17538.5(d)(1) states the following: 

“Every person receiving private mailbox receiving service from a CMRA in this state shall be required to sign an agreement, along with a USPS Form 1583, which authorizes the CMRA owner or operator to act as agent for service of process for the mail receiving service customer. Every CMRA owner or operator shall be required to accept service of process for and on behalf of any of their mail receiving service customers, and for two years after termination of any mail receiving service customer agreement. Upon receipt of any process for any mailbox service customer, the CMRA owner or operator shall (A) within 48 hours after receipt of any process, place a copy of the documents or a notice that the documents were received into the customer's mailbox or other place where the customer usually receives his or her mail, unless the mail receiving service for the customer was previously terminated, and (B) within five days after receipt, send all documents by first-class mail, to the last known home or personal address of the mail receiving service customer. The CMRA shall obtain a certificate of mailing in connection with the mailing of the documents. Service of process upon the mail receiving service customer shall then be deemed perfected 10 days after the date of mailing. 

If the CMRA owner or operator has complied with the foregoing requirements and provides to any party participating in a lawsuit involving a mail receiving service customer a declaration of service by mail, given under penalty of perjury along with a certificate of mailing, the CMRA owner or operator shall have no further liability in connection with acting as agent for service of process for its mail receiving service customer.”    

Here, Defendant provides the Declaration of Godfrey Nzeogu, who declares under penalty of perjury that he rented the subject mailbox at the UPS Store described in the proof of service. (Nzeogu Decl. ¶ 2.) As part of the process of renting the mailbox, he provided a personal mailing address to the UPS Store. (Id. ¶ 3.) Furthermore, he states the following: “I never received a summons and complaint in this lawsuit in the mailbox. I never received a mail from the UPS Store that contained any summons and complaint in this lawsuit. No summons and complaint was mailed to me at the UPS Store by the plaintiff in this case. During the course of my dealing with the UPS Store, the only person that works in the UPS Store that is named Tim is Asian, presently 29 years old (27 years in 2022), black hair, about 5’7” and weight unknown.” (Id. ¶ 4–7.)

Based on the declaration, Defendant has shown that its lack of actual notice to defend the action was not caused by inexcusable neglect or avoidance of service, since Nzeogu declares he did not receive a summons or complaint in the UPS mailbox. Additionally, Defendant has attached a copy of its proposed answer. Plaintiff does not oppose and therefore, fails to set forth facts showing that Defendant had actual notice. As a result, the motion for relief under section 473.5 is granted. Since the motion is granted, the Court declines to apply section 473(d) and equitable relief.

CONCLUSION AND ORDER

Therefore, the Court GRANTS Defendant’s Motion to Set Aside the Default and Default Judgment.

Defendant shall file and serve its proposed answer within 10 days.

The Final Status Conference is set for January 15, 2025 at 10:00 a.m. in Department 32 of the Spring Street Courthouse.

Trial is set for January 29, 2025 at 8:30 a.m. in Department 32 of the Spring Street Courthouse.

Defendant to provide notice and file a proof of service of such.