Judge: Gary Y. Tanaka, Case: 19TRCV00810, Date: 2023-04-25 Tentative Ruling

Case Number: 19TRCV00810    Hearing Date: April 25, 2023    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka                                                                                           Tuesday, April 25, 2023

Department B                                                                                                                             Calendar No. 6

PROCEEDINGS

            Bo-D-Bro, Inc. v. Atkinson and Associates, et al.

            19TRCV00810

1.      South Coast Industrial, Inc.’s Motion to Set Aside Default Judgment

2.      South Coast Industrial, Inc.’s Motion to Quash Service of Summons

3.      South Coast Industrial, Inc.’s Motion for Costs and Sanctions Pursuant to CCP § 128.7   

TENTATIVE RULING

            South Coast Industrial, Inc.’s Motion to Set Aside Default Judgment is denied without prejudice.

            South Coast Industrial, Inc.’s Motion to Quash Service of Summons is denied.

            South Coast Industrial, Inc.’s Motion for Sanctions is denied.

            Background

            Plaintiff filed the Complaint on September 3, 2019. Plaintiff alleges the following facts. This matter involves contractual and construction defect related claims arising from a multi-family development project located at or about 8740 La Tijera Blvd. (hereinafter the “Project”). Plaintiff was a sub-contractor on the project and filed its complaint for alleged failure to pay for labor and services rendered. Several Cross-Complaints have also been filed in this action including the relevant Third Amended Cross-Complaint filed by Atkinson and Associates in which it named South Coast Industrial, Inc. as a Cross-Defendant.

            Motion to Quash

            Code Civ. Proc., § 415.20 states, in relevant part:

            “(a) In lieu of personal delivery of a copy of the summons and complaint to the person to be served as specified in Section 416.10, 416.20, 416.30, 416.40, or 416.50, a summons may be served 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, other than a United States Postal Service post office box, with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. When service is effected by leaving a copy of the summons and complaint at a mailing address, it shall be left with a person at least 18 years of age, who shall be informed of the contents thereof. Service of a summons in this manner is deemed complete on the 10th day after the mailing.”

            Cross-Defendant moves to quash service of the summons on the ground that it was not properly served with the summons and Cross-Complaint.

            First, Cross-Defendant relies on technical defects in the proof of service. (Motion to Quash, page 4, lines 19-28). However, such purported technical errors do not establish lack of jurisdiction. An insufficient or irregular return does not vitiate jurisdiction acquired by service since the court's jurisdiction rests on the fact of service rather than on the proof of service. “The purpose of requiring a return to the court of the summons and proof of service is to give the court notice that plaintiff is diligently prosecuting his case and that defendant has been informed of the action against him and knows he must appear in court. If service upon the defendant is properly made, it is of little importance that there is a defect in the return since “ ‘[i]t is the fact of service which gives the court jurisdiction, not the proof of service.’” Courtney v. Abex Corp. (1986) 176 Cal.App.3d 343, 346–47 (internal citations and quotations omitted; emphasis in original). Here, the facts in the return provide a sufficient showing that Cross-Defendant was informed of the action and Cross-Defendant’s duty to appear in court.

            Second, Cross-Defendant argues that no affidavit of due diligence was attached to the proof of service. However, there is no requirement for an affidavit of due diligence when substitute service is effectuated upon a corporation. CCP § 415.20(a).

            Cross-Defendant also argues that Cross-Complainant failed to comply with CCP § 417.10 and CCP § 412.30.

            Code Civ. Proc., § 417.10 states, in relevant part: “Proof that a summons was served on a person within this state shall be made: (a) If served under Section 415.10, 415.20, or 415.30, by the affidavit of the person making the service showing the time, place, and manner of service and facts showing that the service was made in accordance with this chapter. The affidavit shall recite or in other manner show the name of the person to whom a copy of the summons and of the complaint were delivered, and, if appropriate, his or her title or the capacity in which he or she is served, and that the notice required by Section 412.30 appeared on the copy of the summons served, if in fact it did appear.”

            Code Civ. Proc., § 412.30 states:

            “In an action against a corporation or an unincorporated association (including a partnership), the copy of the summons that is served shall contain a notice stating in substance: “To the person served: You are hereby served in the within action (or special proceeding) on behalf of (here state the name of the corporation or the unincorporated association) as a person upon whom a copy of the summons and of the complaint may be delivered to effect service on said party under the provisions of (here state appropriate provisions of Chapter 4 (commencing with Section 413.10) of the Code of Civil Procedure).” If service is also made on such person as an individual, the notice shall also indicate that service is being made on such person as an individual as well as on behalf of the corporation or the unincorporated association.

            If such notice does not appear on the copy of the summons served, no default may be taken against such corporation or unincorporated association or against such person individually, as the case may be.”

            However, all that is required is substantial compliance with CCP § 412.30. Minor defects are not significant if the summons shows that Cross-Defendant had reasonable notice that the summons was being directed against it. Dill v. Berquist Const. Co., Inc. (1994) 24 Cal.App.4th 1426, 1436-37. Substantial compliance requires a showing of the following: there must be some degree of compliance, that the circumstances show that it was highly probable that attempted service imparted the same notice as full compliance, and that the attempted service provided sufficient notice to Cross-Defendant to put on a defense. Carol Gilbert, Inc. v. Haller (2009) 179 Cal.App.4th 852, 865-66. Here, paragraphs 3 to 6 of the proof of service provided sufficient notice to Cross-Defendant and establishes the necessary degree of substantial compliance with CCP § 412.30.

            Finally, Cross-Defendant’s self-serving declaration attempting to refute the facts of substitute service stated on the return do not overcome the presumption of the truth of the facts stated in the return. “The return of a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.” Evid. Code, § 647.

            Therefore, Cross-Defendant’s Motion to Quash Service of Summons is denied.

            Motion to Set Aside Default

            CCP § 473(b) states, in relevant part: “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.  . . .  Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. . . .”

            CCP § 473.5(a) states, in relevant part: “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.”

            CCP § 473.5(b) states: “A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.” The phrase “actual notice” means “genuine knowledge of the party litigant” and does not include constructive or imputed notice to the client. Tunis v. Barrow (1986) 184 Cal.App.3d 1069, 1077.

            Cross-Defendant moves for an order to set aside and vacate the entry of default judgment. The only statutory basis presented by Cross-Defendant was Code of Civil Procedure section 473.5. The motion is brought on the ground that the service of the summons and Cross-Complaint was defective and did not result in actual notice to Defendant, in time to defend this action.

            First, no default judgment has been entered in this action. The entry of default and the entry of default judgment are separate procedures. Thus, simply on that basis the motion can be denied. Cross-Defendant did not move to set aside the entry of default. Therefore, the Court denies without prejudice the motion to set aside entry of default judgment. The Court does note that the Court’s ruling above determining that the motion to quash service of summons is denied does not definitively establish that moving party may not have had actual notice of the action in time to defend this action and be able to, potentially, obtain relief under Section 473.5.

            Thus, the motion to set aside entry of default judgment is denied without prejudice subject to the filing of a proper motion to set aside entry of default. The Court also notes that, in opposition, Cross-Complainant stated that it offered to stipulate to set aside the entry of default. The Court encourages the parties to meet and confer to resolve this issue without the necessity for future Court intervention.

            Motion for Sanctions

            Because Cross-Defendant is in default, Cross-Defendant has no right to file motions in this action other than a motion to set aside entry of default (and a motion to quash as shown below). “The entry of a default cuts off the right to file pleadings and motions, and the right to notices and the service of pleadings. [...] [A]ppellants’ remedy [. . .] was a motion under Code of Civil Procedure section 473 to set aside the default; until the default was set aside, appellants’ procedural rights were cut off.” Steven M. Garber & Associates v. Eskandarian (2007) 150 Cal.App.4th 813, 823–24 (internal citations and quotations omitted). A motion to quash service of the summons and complaint may be filed in conjunction with a motion to set aside the default. CCP § 418.10(d). Therefore, a ruling on the merits to that motion was made as noted above. However, no authority is provided to show that a motion for sanctions can be filed by a party which is “out of court.”

            Therefore, Cross-Defendant’s motion for sanctions is denied.

Cross-Complainant is ordered to give notice of this ruling.