Judge: Jill Feeney, Case: 20STCV31717, Date: 2022-10-04 Tentative Ruling
Case Number: 20STCV31717 Hearing Date: October 4, 2022 Dept: 30
Department 30, Spring Street Courthouse
October 4, 2022
20STCV31717
Motion to Set Aside Request for Entry of Default filed by Defendant Ziba Investment Corp, dba Arco Gas Station
DECISION
The motion is granted.
Defendant is ordered to file and serve an answer or other responsive pleading within 30 days after the date of this order.
Trial is set for October 16, 2023 at 8:30 a.m.
The FSC is set for October 2, 2023 at 10:00 a.m.
Motion cutoff date, discovery cutoff date, expert exchange date and all other dates are to comport with a trial date of October 16, 2023.
To the extent that the parties wish to participate in mediation, they are ordered to do so prior to the FSC.
The parties should not anticipate any further continuances. This is a firm trial date and the parties should be prepared to proceed.
Moving party is ordered to provide notice and to file proof of service of such notice within five court days after the date of this order.
Background
This is an action for property damage, general negligence, personal injury, and other unspecified other damages which was filed on August 20, 2020. Plaintiff Cassandra Rodney filed her complaint against Arco Gas Station alleging she was assaulted, pushed, and accused of shoplifting. Plaintiff further alleges Defendant threatened to have her arrested and humiliated her. Plaintiff contends that Defendant later called her to pay her off with $25.
Default was entered against Defendant on March 25, 2022.
Defendant filed its motion to set aside default judgment on August 26, 2022.
Summary
Moving Arguments
Defendant seeks an order setting aside default judgment on the grounds that service was improper. Defendant alleges Plaintiff did not comply with procedural requirements by failing to serve the Complaint on Defendant’s agent for service or on a corporate office or managerial officer, and then did not mail the Complaint to anyone.
Opposing Arguments
None filed
Legal Standard
The Court may set aside any void judgment or order at any time. (Code Civ. Proc., § 473, subd. (d); Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1249.) 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., § 473.5, subd. (a).)
“‘A summons is the process by which a court acquires personal jurisdiction over a defendant in a civil action’ [citation], 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. [Citation.] Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. [Citation.]’” (Ellard v. Conway¿(2001) 94 Cal.App.4th 540, 544.)
Service of a summons may be accomplished by personal service, by substitute service, by mail with an acknowledgment of receipt, or by publication. (Code Civ. Proc., section 415.10, et seq.) “An individual may be served by substitute service only after a good faith effort at personal service has first been made: the burden is on the plaintiff to show that the summons and complaint ‘cannot with reasonable diligence be personally delivered’ to defendants. [Citations.] Two or three attempts to personally serve a defendant at a proper place ordinarily qualifies as ‘reasonable diligence.’” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389.) (Emphasis added.) If the summons and complaint cannot be personally delivered with reasonable diligence, then a copy may be served at the person’s “dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, 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 other than a United States Postal Service post office box…who shall be informed of the contents thereof and by thereafter mailing a copy of the summons and complaint by first class mail, postage prepaid, to the person to be served…” (Code Civ. Proc., section 415.20, subd. (b).)
Where “the party in favor of whom the judgment or order runs admits facts showing its invalidity, or, without objection on his part, evidence is admitted which clearly shows the existence of such facts, then it is the duty of the Court to declare the judgment or order void.” (Thompson v. Cook (1942) 20 Cal.2d 564, 568.)
Discussion
Defendant argues that the default rendered against it should be set aside because Plaintiff did not meet procedural requirements for substituted service and Defendant was never served and did not have actual notice of the action. Default was entered against Defendant on March 25, 2022.
Defendant’s evidence shows that Plaintiff served Arco by giving the Complaint to “Bianca” at the Arco gas station located at 1026 W. Imperial Highway, Los Angeles, CA 90044. (Nik Decl., ¶¶2-3.) Bianca is not now, and has never been, Arco’s agent for service of process and no one at that Arco location was authorized to accept service. (Id., ¶4.) The Vice President of Defendant Ziba Investment Corp., dba Arco Gas Station only discovered the lawsuit after Bianca contacted him, notifying him that Plaintiff left a proposed default judgment at the store at issue on June 15, 2022. (Id., ¶6.) The Complaint was never mailed to Bianca or any other managerial personnel at Ziba Investment. (Id., ¶8.) Plaintiff’s proof of service shows that she served Arco by personal service to Bianca. (Id., Exh. A.)
Defendant’s evidence shows that service was improper. There is no evidence that Plaintiff served her Complaint upon a person authorized to accept service on behalf of Arco using any method prescribed under Code Civ. Proc., section 415.10. Additionally, even if Plaintiff was attempting to serve her Complaint via substituted service, Plaintiff failed to serve the Complaint at Arco’s usual place of business and then failed to mail a copy of the Complaint to Arco.
Plaintiff does not oppose this motion and does not object to Defendant’s evidence showing it was never properly served with notice of this matter. There being no objection to Defendant’s evidence, Defendant’s motion is granted. Default against Ziba Investment Corp, dba Arco Gas Station is set aside.
