Judge: Cherol J. Nellon, Case: 23STCV02779, Date: 2023-10-11 Tentative Ruling

Case Number: 23STCV02779    Hearing Date: October 11, 2023    Dept: 14

Instant Motion

            Defendant Termechi now moves this court for an order setting aside his default and permitting him to file an Answer.

Decision

            Defendant’s Evidentiary Objections are OVERRULED.

            The motion is GRANTED.

Discussion

            It is undisputed that Defendant Breadman occupies two physical locations. It is undisputed that only one of those locations, the “First Location,” is listed on Defendant Breadman’s public filings as its official address. The other location, the “Second Location,” is not so listed.

            It is also undisputed that Plaintiff attempted to serve both defendants at the Second Location. Defendant Termechi claims that he has gone to the Second Location twice in the past four years. (Declaration of Mehran Termechi ¶ 6). Plaintiff argues that this is false. But Plaintiff can only attest that Defendant Termechi has been at the Second Location twice since June of 2020. (Declaration of Farzad Kohanbash ¶ 4).

            The proofs of service filed with this court indicate substitute service: that a copy of the summons and complaint was left with a receptionist and later mailed to the Second Location.

            On April 5, 2023, Plaintiff’s counsel was contacted by a Mr. Benjamin Smith, who expressly disclaimed being counsel for Defendant Termechi, but expressed an understanding that the complaint was served and wanted a 30-day extension on the deadline to respond. (Declaration of Homan Mobasser Exhibit 1). On April 28, 2023, Defendant Termechi emailed Plaintiff’s counsel directly about a demand letter that Plaintiff’s counsel had sent him months earlier. (Id. Exhibit 2). Plaintiff’s counsel responded by warning him that he was soon to be in default. (Id.).

            The default was entered on May 19, 2023. This motion followed on July 31, 2023.

            Defendant Termechi argues that the default should be set aside as void pursuant to Code of Civil Procedure § 473(d). He is correct.

            A default entered against a defendant is void if the defendant was never properly served, because proper service is a necessary predicate to personal jurisdiction. Ellard v. Conway (2001) 94 Cal.App.4^th 540, 544. Code of Civil Procedure § 415.20(b) governs substitute service, and it requires that the summons and complaint be delivered to the defendant’s “usual place of business or usual mailing address.” The evidence presently before this court shows that the Second Location is not Defendant Termechi’s usual place of business or usual mailing address. Defendant Termechi’s registered address is elsewhere, and there is no evidence that Defendant Termechi has been to the Second Location more than twice since June of 2020.

            Plaintiff argues that Defendant Termechi admitted to being properly served. He did not. Defendant Termechi’s own email to counsel does not mention service at all. It only mentions a demand letter sent well before the complaint was filed, and mediation. While Mr. Smith did convey his own personal understanding that service had occurred, Mr. Smith was not Defendant Termechi’s counsel at the time. He had no personal knowledge regarding service, and his position was not binding on a party he did not formally represent.

Conclusion

            Because Plaintiff did not serve Defendant Termechi at his usual place of business or usual mailing address, Defendant Termechi was never properly served. Because Defendant Termechi was never properly served, the default entered against him is void. The motion is therefore GRANTED.