Department 58

Hearing Date: April 12, 2023

Case Name: Omninet MV Mansfield, LLC et al. v. Manuel Toribio, Does 1-20

Case No.: 22STCV32765

Motion: Request for Default Judgment

Moving Party: Plaintiffs Omninet MV Mansfield, LLC & Omninet CV Mansfield, LLC

Responding Party: n/a

Tentative Ruling: Deny for lack of proper service.

Background

Defendant rented a residential apartment from plaintiffs’ predecessor-in-interest beginning in April 30, 2020. Plaintiffs allege he ceased paying rent beginning in May 2020. On October 6, 2022, plaintiffs sued defendant for breach of his written lease. The clerk entered defendant’s default on January 30, 2023. Plaintiffs now seek judgment for $86,988.19 in general damages and $625.92 in costs.

Plaintiffs’ request fails for lack of proper service, and the court must therefore deny judgment and vacate the clerk’s entry of default pending proof of proper service.

Plaintiffs did not leave a copy of the summons and complaint at defendant’s dwelling, abode, or usual mailing address.

Plaintiffs filed a proof of substituted service on January 30, 2023 along with the default packet they submitted to the clerk. Licensed process server Robert Brooks attached a declaration attesting he diligently attempted to serve defendant before leaving a copy of the summons and complaint at his dwelling house or usual place of abode or mailing address in accordance with Code of Civil Procedure section 415.20. (Further undesignated statutory references are to the Code of Civil Procedure unless otherwise specified.)

Section 415.20, subdivision (b) permits service of a summons and complaint “by leaving a copy . . . at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address . . . and by thereafter mailing a copy” to the same location. “The question of what constitutes [a] defendant’s ‘usual place of abode’ is not one of abstract definition, but must be answered with the notice requirements of due process clearly in mind.’ ” (Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1418.)

Detailing his attempts at service, Mr. Brooks declares: “knocked on the front door which is answered by [a woman] who stated she does not know the individual we are looking for she did state that from time to time she does get mail [addressed] to this individual though she has lived here . . .approximately a year so bad address on this job due to the fact that individual we are looking for is the previous tenant to this apartment.” (Brooks Decl. of Diligence, p. 2, italics added.) Three days earlier, while attempting to serve defendant, Brooks “spoke to a maintenance man who told me he had never heard of anyone by the name of the individual we were looking for and to the best of his knowledge two females live in that apartment by themselves … .” (Id., p. 1.)

Plaintiffs have therefore been made aware through their agent (if they were not aware already) that the place where Mr. Brooks left the summons and complaint is not defendant’s dwelling, usual place of abode, or usual mailing address. Plaintiffs have not satisfied section 415.20.

Plaintiffs have not attested to due diligence.

Before a plaintiff resorts to substituted service, the plaintiff must also determine that “the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served . . . .” (Code Civ. Proc. § 415.20, subd. (b).) “[O]rdinarily, two or three attempts at personal service at a proper place and with correct pleadings should fully satisfy the requirement of reasonable diligence . . . .” (Kremerman v. White (2021) 71 Cal.App.5th 358, 373 [landlord did not exercise diligence for, among other reasons, serving tenant in a unit he knew tenant had vacated].)

As a matter of common sense, a party does not exercise reasonable diligence where it repeatedly and knowingly attempts to serve process at a recipient’s prior address without any reason to believe the intended recipient will discover the attempts. The Code permits other methods of service if plaintiffs cannot determine defendant’s current address with reasonable diligence – but plaintiffs must exercise that diligence first. (See Code Civ. Proc. § 415.50.)

The court must vacate the default entered by the clerk.

“In an action arising upon contract . . . if the defendant has . . . been served . . . and no [responsive filing] has been filed with the clerk of the court within the time specified in the summons, or within further time as may be allowed, the clerk, upon written application of the plaintiff, and proof of the service of summons, shall enter the default of the defendant or defendants, so served . . . .” (Code Civ. Proc. § 585, subd. (a), italics added.) The clerk exceeded its authority by entering default against a defendant who had not been served. The clerk “derives all his power” to enter default from section 585, and “in each case it must appear that what he did was within the authority conferred on him by [that] statute.” (Baird v. Smith (1932) 216 Cal. 408, 410-411.) Thus, “a default prematurely taken[ ] is void and may be set aside at any time.” (Id., at p. 410.)

The court denies plaintiffs’ request for judgment and vacates the default entered on January 30, 2023, against defendant Manuel Toribio.