Judge: Douglas W. Stern, Case: 21STCV44948, Date: 2022-08-09 Tentative Ruling

Case Number: 21STCV44948    Hearing Date: August 9, 2022    Dept: 52

Tentative Ruling

            Plaintiff Westlake Services, LLC, doing business as Westlake Financial Services’ Request for Default Judgment Against Defendants Michael Ray Auto Group Inc. and Kenneth Adams

Plaintiff Westlake Services, LLC, doing business as Westlake Financial Services, requests default judgment against defendants Michael Ray Auto Group Inc. and Kenneth Adams aka Kenneth W. Adams aka Kenneth Wayne Adams aka Kenneth W. Adams, Jr. aka Ken Adams. 

The court cannot enter default judgment against defendants because plaintiff has not shown adequate proof of service of summons.  “When a court lacks jurisdiction in a fundamental sense, such as lack of authority over the subject matter or the parties, an ensuing judgment is void.”  (OC Interior Services, LLC v. Nationstar Mortgage, LLC (2017) 7 Cal.App.5th 1318, 1330.)  “To establish personal jurisdiction, it is essential to comply with the statutory procedures for service of process.”  (Ibid.)  “Accordingly, ‘ “a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.” ’ ”  (Id. at p. 1331.)

Plaintiff filed proofs of service by substituted service on defendant Michael Ray Auto Group Inc. and Kenneth Adams.  For a corporation, substituted service on the person to be served may be done “by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address… with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and complaint.”  (CCP § 415.20(a).)

For an individual, “[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 or a person apparently in charge of his or her office, place of business, or usual mailing address… , 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.”  (CCP § 415.20(b).) 

Plaintiff’s proofs of service show substituted service on Kenneth Adams as an individual and as the person to be served on behalf of Michael Ray Auto Group Inc. at 13374 Fairwinds Dr., Strongsville, OH 44136.  Plaintiff’s evidence, however, does not show that address is Adams’ office, dwelling house, usual place of abode, usual place of business, or usual mailing address. 

Substituted service must be made “at a proper place” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 545 (Ellard)), i.e., one of the places enumerated in Code of Civil Procedure section 415.20.  In Ellard, the process server learned defendants no longer lived at the address of attempted service.  (Ellard, 94 Cal.App.4th at p. 545.)  “Thus, the [prior] residence was not the proper place to serve the [defendants] because they moved.  It would be futile for the process server to return to that address two more times and attempt service at a residence where the [defendants] no longer lived.”  (Ibid.)  Plaintiff ultimately effected service after counsel “contacted the United States Postal Service and obtained [defendants’] forwarding address,” and the server completed substituted service there.  (Ibid.) 

Here, the two declarations of non-service by process server Jeffrey Levine filed on April 27, 2022, state he attempted to serve Michael Ray Auto Group Inc. and Kenneth Adams at 13374 Fairwinds Dr., Strongsville, OH 44136.  Regarding attempted service on February 5, 2022, Levine noted, “Bad address per Mr. Adams moved out in December 2021.”  Similarly, process server Pat Long’s declaration of due diligence attached to the proof of service on Kenneth Adams includes the note, “This is a bad address per Ms. Adams” dated February 7, 2022.

Plaintiff therefore learned Kenneth Adams had not lived at 13374 Fairwinds Drive since December 2021 or at least February 2022.  Plaintiff’s purported substituted service occurred at that address on April 26, 2022.  That was not “a proper place” to serve Kenneth Adams because he does not live there.  The record contains no evidence showing that 13374 Fairwinds Drive is Adams’ office, dwelling, usual place of business, or usual mailing address.  “ ‘[R]easonable diligence’… denotes a thorough, systematic investigation and inquiry conducted in good faith by the party or his agent or attorney.”  (Kott v. Superior Court (1996) 45 Cal.App.4th 1126, 1137.)  Without further evidence, serving Adams at an address where the occupant said Adams had not lived for months did not constitute reasonable diligence. 

Because plaintiff failed to provide sufficient proof of service of process, the court hereby vacates the defaults of defendants Michael Ray Auto Group Inc. and Kenneth Adams.

Plaintiff’s request for default judgment is denied.