Judge: Armen Tamzarian, Case: 22STCV13240, Date: 2023-03-01 Tentative Ruling

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Case Number: 22STCV13240    Hearing Date: March 1, 2023    Dept: 52

Non-Appearance Case Review Re: Default Judgment

Since the prior hearing on this matter, plaintiff Nussbaum APC filed a second amended proof of service on defendant Michael Verdi.  This proof of service indicates plaintiff served Verdi via a commercial mail receiving facility (CMRA) at 23679 Calabasas Rd., Box 964, Calabasas, CA 91302.  It also shows subsequent mailing to Verdi on February 7, 2023.

This proof of service is insufficient.  For substituted service on a CMRA, Code of Civil Procedure section 415.20(c) provides: “Notwithstanding subdivision (b),” the general provision for substituted service on an individual, “if the only address reasonably known for the person to be served is a private mailbox obtained through a commercial mail receiving agency, 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.” 

In Kremerman v. White (2021) 71 Cal.App.5th 358, the court held a default judgment was void and service on a CMRA was invalid for two reasons.  First, the court stated, “[I]t is undisputed that [plaintiff] was aware that [defendant] had another address.”  (Id. at p. 373.)  Second, the court stated, “California law requires the CMRA to place a notice or copy of the documents in the customer’s mailbox within 48 hours and to send the documents by first-class mail within five days after receipt to the customer's address.  [¶]  There is no evidence in the judgment roll that indicates whether the referenced statutory requirements were met.”  (Id. at pp. 373-374.)  “The CMRA employee Sarah Plowden stated in her declaration” that she mailed the documents 20 days after receiving them.  (Id. at p. 374.) 

The record shows the CMRA was not “the only address reasonably known for” defendant Michael Verdi.  Plaintiff’s own documents show it knows two other addresses, or at least potential addresses, for Verdi.  Plaintiff’s notice of client’s right to fee arbitration states his address as 26500 Agoura Road, #592, Calabasas, CA 91302, the same as the address as for defendant Volantis Global, Inc.  (Nussbaum Decl., Ex. 3, p. 2.)  And on each of the documents in this application, plaintiff’s proofs of service, including the declaration of mailing under Code of Civil Procedure section 587 on the CIV-100 form, state plaintiff served Verdi by mail at 22561 Quinta Rd., Woodland Hills, CA 91364.

Because the CMRA is not the only address reasonably known for Verdi, plaintiff must exercise reasonable diligence to personally serve Verdi before resorting to substituted service.  Nothing in the record shows any attempt to personally serve Verdi at his other known addresses.  The second amended proof of service therefore does not show valid service of process.

Plaintiff’s request for court judgment by default is denied without prejudice.