Judge Barbara M. Scheper, Case 22STCV17502 2023-04-05 Tentative Ruling

Judge: Barbara M. Scheper, Case: 22STCV17502, Date: 2023-04-05 Tentative Ruling

Case Number: 22STCV17502 Hearing Date: April 5, 2023 Dept: 30

Dept. 30

Calendar No.

Beasley vs. Byars, E.A., et. al., Case No. 22STCV17502

Tentative Ruling re: Defendant’s Motion to Set Aside Default

Defendant Shelvin E. Byars (Defendant) moves for an order setting aside the default and default judgment entered against him on February 6, 2023. The motion is granted.

Under Code of Civil Procedure section 473, subdivision (d), “[t]he court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”

“[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.] Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. [Citation.] . . . Under section 473, subdivision (d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service.” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.)

“When a defendant challenges the court's personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.’ ” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.)

Plaintiff Amber Beasley (Plaintiff) commenced this action on May 27, 2022. On October 13, 2022, Plaintiff filed a Proof of Service of Summons stating that personal service was made on Defendant on August 11, 2022, through “Mary Doe,” a receptionist authorized to accept service on Defendant’s behalf. The service was made at Defendant’s work address, 400 Corporate Pointe, Ste 300, Culver City, CA 90230. The Court entered Defendant’s default on October 13, 2022, and entered Judgment for Plaintiff on February 6, 2023.

Defendant moves to vacate the default and default judgment on the basis that Plaintiff did not properly serve the summons and complaint on him. In support, Defendant submits the declaration of Marquesha Sizemore (Sizemore), the receptionist at Defendant’s office address, and the “Mary Doe” identified in Plaintiff’s Proof of Service. Sizemore is employed by Premier Workspace (Premier), a company which subleases refurnished office space to small business owners and individuals. (Sizemore Decl. ¶ 3.) Along with providing clients the office space, Premier also makes various services available to its clients, including reception, faxing, and copying, internet, and cleaning. (Ibid.) Sizemore’s duties for Premier are screening visitors at the reception area, assorting and distributing clients’ mail, and accepting deliveries made to clients in accordance with Premier’s company policy. (Ibid.)

Under Premier’s policy regarding receptionist interaction with third-party visitors and delivery persons, a receptionist is authorized to accept deliveries on behalf of a client delivered by uniformed or otherwise clearly identifiable commercial carriers (e.g, USPS, UPS). Other than those commercial carriers, Sizemore is not authorized and may not accept any deliveries on behalf of a client unless the client has given their prior, express permission to do so. (Sizemore Decl. ¶ 4.)

On August 11, 2022, Sizemore was working at the reception area and was approached by a man, plainly dressed, who stated that he had a delivery for Shelvin Byars. (Sizemore Decl. ¶ 6.) As directed by Premier’s policy, Sizemore informed the man that she didn’t work directly for Byars, and asked him to wait while she checked to see if he was in the suite. (Ibid.) Byars was not present. Toya Ayala, an associate of Byars with a nearby office, who would sometimes order supplies for Byars’ business, was in. Sizemore informed Ayala that there was a delivery for Byars; Ayala was unaware of any delivery and did not approve Sizemore to accept the delivery. (Ibid.) Sizemore returned to the reception area and informed the man that no one was available to accept the delivery. (Sizemore Decl. ¶ 7.) Without identifying the papers to Sizemore, the man asked her if he could leave them with her. Sizemore told him that he could leave the papers on the reception desk, which he did before leaving the suite. Sizemore then retrieved the papers and took them to Ayala’s office. (Sizemore Decl. ¶ 7.) At no point did the delivery person ever ask Sizemore whether she was authorized to accept service on behalf of Byars, or make any inquiry regarding Sizemore’s authority to act on Byars’ behalf. (Ibid.)

“A summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served. Service of a summons in this manner is deemed complete at the time of such delivery.” (Code Civ. Proc. § 415.10.) A summons may also be served “by delivering a copy of the summons and of the complaint to such person or to a person authorized by him to receive service of process.” (Code Civ. Proc. § 416.90; American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389.)

“If the process is delivered to an agent of defendant, such agent must be one who is authorized by law or appointment to receive service of process, and the agent of an individual for other purposes is not necessarily authorized to receive such process. . . . a specific appointment is not required, but the principal-agent relationship must be close and enduring enough to make it highly probable the defendant will receive actual notice.” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 411–412.)

Plaintiff has failed to meet her burden to show effective service on Defendant. Plaintiff has presented no evidence showing that Sizemore was authorized to accept personal service on Defendant’s behalf. Plaintiff also does not contest Sizemore’s declaration testimony, which indicates that Sizemore was not authorized to accept service of process for Byars and did not represent that she was Byars’ agent for service. Contrary to Plaintiff’s argument, Defendant’s actual notice of this suit does not excuse the failure to properly effect service. (Summers, 140 Cal.App.4th at 414 [“no California appellate court has gone so far as to uphold a service of process solely on the ground the defendant received actual notice when there has been a complete failure to comply with the statutory requirements for service”].)

Plaintiff also argues that the motion should be denied because Defendant’s failure to respond was not “excusable.” However, it is not necessary to show excusable mistake where a default judgment is void due to improper service. (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.)