Judge: Armen Tamzarian, Case: 23STCV00944, Date: 2024-02-15 Tentative Ruling

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Case Number: 23STCV00944    Hearing Date: February 15, 2024    Dept: 52

Order to Show Cause Re: Entry Default Judgment

Plaintiff Jose Flores requests court judgment by default against defendant Frank Laaly, D.D.S.  The court cannot grant default judgment and must vacate Laaly’s default. 

For two reasons, plaintiff has not shown proper service of his statement of damages on defendant.  In a personal injury action, “the plaintiff shall serve the statement [of damages] on the defendant before a default may be taken.”  (CCP § 425.11(c).)  “If a party has not appeared in the action, the statement shall be served in the same manner as a summons.”  (Id., subd. (d)(1).)

First, plaintiff filed only one statement of damages.  It is dated January 30, 2024.  The attached proof of service shows only service by mail, not in the manner as a summons.  Plaintiff also filed purported substituted service of a statement of damages on Laaly in July 2023.  That service could not have been for this statement of damages dated months later.

Second, assuming the prior statement of damages (which was not filed with the court) is valid, plaintiff did not prove adequate substituted service on defendant.  “Ordinarily, two or three attempts at personal service at a proper place and with correct pleadings should fully satisfy the requirement of reasonable diligence and allow substituted service to be made.”  (Kremerman v. White (2021) 71 Cal.App.5th 358, 373.)

Plaintiff filed proof of service of a statement of damages on July 10, 2023.  The proof of service attests to substituted service on an unidentified “friend” of Laaly at 616 N. Sweetzer Ave., #309, Los Angeles, CA 90048.  The process server’s declaration states he made one prior attempt to serve Laaly at that address before serving the papers on “a female occupant who refused to identify herself.”  (Vasquez Decl., ¶¶ 4-5.)  He explains no basis for determining that is Laaly’s residence or any other “proper place.”  (Kremerman, supra, 71 Cal.App.5th at p. 373.)  He does not testify that the occupant stated Laaly lives at that address. 

Moreover, the complaint and summons were personally served on Laaly at a different address: 528 Amalia Avenue, Los Angeles, CA 90022.  The process server does not testify he made any prior attempts to serve the statement of damages on Laaly at that address. 

To effect valid substituted service, plaintiff must show reasonable diligence in attempting to personally serve the current statement of damages on Laaly at 528 Amalia Avenue. 

Disposition

Plaintiff’s request for court judgment by default is denied.  The court hereby vacates the default of defendant Frank Laaly, D.D.S. pursuant to Code of Civil Procedure section 425.11, subdivision (c).