Judge Cherol J. Nellon, Case Number: 24STCV12103, Date: 2025-01-29 Tentative Ruling

Judge: Cherol J. Nellon, Case: 24STCV12103, Date: 2025-01-29 Tentative Ruling

Case Number: 24STCV12103 Hearing Date: January 29, 2025 Dept: 14

Case Background

This is an action for breach of contract, unjust enrichment, promissory estoppel, breach of the implied duty of good faith and fair dealing, fraud, unfair business practices, and intentional infliction of emotional distress. Plaintiff Western Highways, Inc. provided transportation services to Defendants who then failed to pay for those services.

On May 14, 2024, Plaintiffs Juan Alan Franco and Western Highways, Inc. (Western). filed their Complaint against Defendants Robert Delgado, Brian Waldvogel, Brian Davidson, Shauna Summers, and Centricity Labs, Inc. (Centricity).

On October 7, 2024, Default was entered against Defendant Summers.

On May 14, 2024, Summers filed a motion to set aside default.

Instant Pleading

Defendant Summers moves to set aside the default entered against her on October 7, 2024.

Decision

Summers’ motion to set aside the default is GRANTED. Summers is to file her proposed responsive pleading within 30 days of this order.

Legal Standard

Code of Civil Procedure section 473.5, subdivision (a) provides, “When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.” (Code Civ. Proc., section 473.5, subd. (a).)

“‘A summons is the process by which a court acquires personal jurisdiction over a defendant in a civil action’…, and a defendant has an absolute right to demand that process be issued against him in a manner prescribed by law.” (Mannesmann DeMag, Ltd. v. Superior Court¿(1985) 172 Cal.App.3d 1118, 1122.) “Constitutional due process requirements are satisfied where the form of service provided and employed is¿reasonably¿calculated¿to give a litigant actual notice of the proceedings and an opportunity to¿be heard.” (Crescendo Corp. v. Shelted, Inc.¿(1968) 267 Cal.App.2d 209, 213.) “‘[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction…Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.’” (Ellard v. Conway¿(2001) 94 Cal.App.4th 540, 544.)

“[I]t is the policy of the law to bring about a trial on the merits whenever possible, so that any doubts which may exist should be resolved in favor of the application, to the end of securing to a litigant his day in court and a trial upon the merits.” (Frank E. Beckett Co. v. Bobbitt (1960) 180 Cal.App.2d Supp. 921, 928 (Bobbitt).) “Even in a case where the showing under section 473 is not strong, or where there is any doubt as to setting aside of a default, such doubt should be resolved in favor of the application.” (Ibid., quoting Van Dyke v. MacMillan (1958) 162 Cal.App.2d 594, 598, italics in Bobbitt.)

Discussion

Summers moves to set aside default on the grounds that she was not served with the Complaint in this matter.

Code Civ. Proc. section 415.20 provides that “[i]f a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served . . . a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address . . . in the presence of a competent member of the household . . . at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail…to the person to be served at the place where a copy of the summons and complaint were left . . . .” (Code Civ. Proc., section 415.20(b).) Service of a summons in this matter is deemed complete on the 10th day after the mailing. (Id.)

Here, Plaintiffs’ proof of service filed August 15, 2024 states Summers was served on July 16, 2024 via substituted service at 709 Via Alondra, Camarillo, CA 93012. Summers provides the declaration of Co-Defendant Brian Davidson Waldvogel, who testifies that he was the person who received the papers intended for Summers at Centricity Labs’ offices. (Waldvogel Decl., ¶¶2-5.) Waldvogel believed he was being personally served, not that he was accepting service for Defendant Summers. (Id.)

Summers testifies that she is not employed by Centricity Labs and has not been employed by its predecessor, Colorful Products, since December 2022. (Summers Decl., ¶¶3-5.) Summers was mistakenly designated as agent for service for Centricity Labs in October 2022. (Id., ¶6.) Thereafter, Summers filed a Resignation of Agent for Service of process in December 2022. (Id.) Summers did not know of this lawsuit or of the default entered against her until November 2024, when her attorney contacted her. (Id., ¶2.)

The Court finds that the address where Plaintiffs served Summers is not the proper location for substituted service under Code Civ. Proc., section 415.20. Therefore, Summers was not properly served and the default entered against her is void. Additionally, the Court is satisfied that Summers had no actual notice f this action. Therefore, Summers is entitled to relief under Code Civ. Proc., section 473.5. In light of the facts above and the policy of law which favors resolution of disputes on the merits, the Court sets aside the default entered against Defendant Summers.

Conclusion

Summers’ motion to set aside the default is GRANTED. Summers is to file her proposed responsive pleading within 30 days of this order.