Judge: David A. Hoffer, Case: 30-2019-01097211, Date: 2022-09-26 Tentative Ruling

The Motion to Vacate Entry of Default and Default Judgment filed by defendant Alan Rummelsburg (“Moving Party”) is GRANTED. (Code Civ. Proc. § 473.5.)

The Motion to Quash Service of Summons for Lack of Personal Jurisdiction filed by Moving Party is GRANTED.  (Code Civ. Proc. § 418.10(a)(1).)

Motion to Vacate

C.C.P. § 473.5 allows a default or default judgment to be set aside when the motion is supported by an affidavit stating that service did not result in actual notice and the lack of actual notice in time to defend the action was not due to avoidance of service or inexcusable neglect, and accompanied by a copy of the pleading proposed to be filed in the action.  Imputed or constructive notice is not “actual” notice.  (See Civ. Code § 18; C.C.P. § 473.5; Rosenthal v. Garner (1983) 142 Cal.App.3d 891, 895.)

Here, Moving Party has complied with the requirement that the motion be accompanied by a copy of the pleading proposed to be filed in the action.  (See ROA 75.)

The motion is timely because it was filed within two years after entry of the default judgment and the underlying default.  (See ROA 43 and 46.)  There is no evidence in the record that Moving Party was ever served with written notice of the default and default judgment; thus, section 473.5(a)(ii) is inapplicable.  In addition, the Court finds the motion was filed within a reasonable time (six months) of Moving Party receiving actual notice of the lawsuit.  Further, the fact that Moving Party received a demand letter in July 2019 from Plaintiff’s counsel, prior to this lawsuit being filed, does not confer actual notice of the lawsuit on him and Plaintiff points to no authority to support such a contention.  Thus, this motion is timely.

As to the merits, according to the proof of service of summons in this matter, Moving Party was served by substituted service at an address in New York to a “Jane Doe” receptionist/person in charge who refused to provide a name.  (ROA 14.)  Moving Party attests that he did not live or work at the address where substituted service took place and that he first learned of this lawsuit on November 4, 2021, after he received a letter from Citibank regarding a deposition subpoena for business records.  (Rummelsburg Decl., ¶¶ 2-5, 8.)

Moving Party also affirms that he was not evading service.  (Id. at ¶ 5.)  The Court finds this to be sufficient to establish that Moving Party did not have actual notice in time to defend against the action and that his lack of notice was not caused by his avoidance of service or inexcusable neglect.  (C.C.P. § 473.5(c); Doxey v. Doble (1936) 12 Cal.App.2d 62.)

Accordingly, the motion is granted pursuant to C.C.P. § 473.5.

Because C.C.P. § 473.5 provides a sufficient basis to grant relief, the Court need not reach Moving Party’s arguments that the judgment is void due to ineffective service of process.

Motion to Quash

A nonresident defendant has a liberty interest in not being subject to the judgments of a forum with which he or she has established no meaningful minimum contacts.  (Vons Companies Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 445, citing Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 471-472.)  The plaintiff bears the burden of proving that a nonresident defendant has sufficient contacts with the forum state to support personal jurisdiction.  (Aquila, Inc. v. Superior Court (2007) 148 Cal.App. 4th 556, 570.)  The plaintiff must demonstrate by a preponderance of the evidence that all jurisdictional criteria are met.  (Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1232.)  If the plaintiff establishes that the defendant has minimum contacts with the forum state, the burden shifts to the defendant to demonstrate that the exercise of jurisdiction would be unreasonable.  (Stone v. Texas (1999) 76 Cal.App.4th 1043, 1048.)

Personal jurisdiction may be general or specific. A nonresident defendant may be subject to general jurisdiction if his or her contacts with the forum are substantial, continuous and systematic.  (Perkins v. Benguet Mining Co. (1952) 342 U.S. 437, 445.)

A court may exercise specific personal jurisdiction over a nonresident defendant only if: (1) the defendant has purposefully availed himself or herself of forum benefits; (2) the controversy is related to or arises out of the defendant’s contacts with the forum; and (3) the assertion of personal jurisdiction would comport with fair play and substantial justice.  (Bombardier Recreational Products, Inc. v. Dow Chemical Canada ULC (2013) 216 Cal.App.4th 591, 598, citing Vons, supra, 14 Cal.4th at 446-447.)

Here, there is no argument or evidence presented to demonstrate that Moving Party has substantial, continuous and systematic contacts with California such that the exercise of general jurisdiction over Moving Party would be proper.

As to specific jurisdiction, the Court finds the evidence is insufficient to demonstrate that Moving Party purposefully availed himself of forum benefits.  Moving Party presented evidence showing that he has never been domiciled in California; he does not and has never owned any real or personal property in California; he has not filed or defended a lawsuit in California; he has not engaged in business in California for over 20 years; and he currently resides in North Carolina.  (Rummelsburg Decl., ¶¶ 2-4, 7-13.)

Plaintiff offers no evidence or argument to refute the above statements in Moving Party’s declaration.  Instead, Plaintiff appears to argue that personal jurisdiction over Moving Party is proper because Moving Party consented to jurisdiction in California based on the Purchase Agreement’s (“Agreement”) forum selection clause.  Even if the Court were to assume the Agreement contains a valid forum selection clause, Moving Party is correct that Plaintiff failed to properly authenticate the Agreement and thus the Agreement cannot be relied upon to support jurisdiction.  Jurisdictional facts must be proved by admissible evidence.  This generally requires documentary evidence and declarations by competent witnesses.  (Rivelli v. Hemm (2021) 67 Cal.App.5th 380, 402.)

A copy of the Agreement is attached as Exhibit 3 to the Declaration of Plaintiff’s attorney, Matthew A. Tag.  (ROA 85.)  The Agreement contains an electronic signature and electronic initials of Moving Party.  Moving Party is correct that the language contained in Mr. Tag’s declaration fails to authenticate the Agreement and Moving Party’s purported signature on the Agreement.  (See Tag Decl. ¶¶ 3-6; see also Civ. Code § 1633.9; Evid. Code § 1400; People v. Valdez (2011) 201 Cal.App.4th 1429, 1435.)

Mr. Tag’s declaration fails to provide sufficient information from which the Court may find that the electronic signature is attributable to Moving Party.  The declaration provides no information about the context and surrounding circumstances of the Agreement’s creation, execution, or adoption.  Mr. Tag does not indicate that he has personal knowledge of the facts and circumstances surrounding the Agreement that would permit him to authenticate said Agreement.  Plaintiff also offered no evidence as to the process used to obtain and verify Moving Party’s signature.  (See Fabian v. Renovate America, Inc. (2019) 42 Cal.App.5th 1062, 1068-70; Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 846.)

Moreover, Moving Party disputes signing the Agreement.  He attests that he never signed the Agreement and that his name was signed electronically without his permission or knowledge.  (Rummelsburg Decl., ¶ 17.)  Plaintiff failed to rebut this contention.

Accordingly, Plaintiff failed to offer admissible evidence that would support a valid exercise of personal jurisdiction over Moving Party.  The Complaint likewise does not support Plaintiff’s contention that personal jurisdiction over Moving Party is proper as it is unverified. An unverified pleading has no evidentiary value in determining personal jurisdiction.  (Mihlon v. Sup.Ct. (Murkey) (1985) 169 Cal.App.3d 703, 710.)

Furthermore, the controversy cannot be said to be related to or arising out of Moving Party’s contacts with the forum.  As discussed above, Plaintiff failed to offer admissible evidence to demonstrate that Moving Party signed the Agreement and there is no evidence offered to refute Moving Party’s statements that he otherwise has no purposeful contacts with California.  Thus, the Court finds the evidence in the record is insufficient to support a finding that the exercise of specific personal jurisdiction over Moving Party is proper.

Accordingly, the motion to quash service of summons for lack of personal jurisdiction is granted.

The Complaint is dismissed without prejudice as to Moving Party.  (C.C.P. § 581(h).)

Based on the above ruling, the Court need not reach Moving Party’s arguments related to ineffective service of process.

Moving Party’s request for judicial notice (ROA 65) is GRANTED as to the existence of and legal effects of the records, but not as to the truth of any disputed facts asserted therein.  (Ev. Code §452(d); Fontenot v. Wells Fargo Bank, NA (2011) 198 Cal.App.4th 256, 264; Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.)

Moving Party’s evidentiary objections (ROA 89 and 93) are SUSTAINED.

Counsel for Moving Party is ordered to give notice of these rulings.