Judge Jill Feeney, Case 20STCV46931 2023-01-19 Tentative Ruling

This is an action for premises liability arising from a slip and fall incident which took place in January 2019. Plaintiff Ludwin Rodriguez filed his Complaint against Maria Villareal on December 8, 2020.

Defendant moves to set aside default judgment against her on the grounds that she did not have actual notice of this action. Defendant claims that she does not know the person alleged to have received service at her place of business. No pleadings were ever forwarded to her.

Plaintiff argues that Defendant had actual notice of this lawsuit because she was properly served via substituted service. Defendant argues that the process server misheard the name of the person accepting service and alleges that one of Plaintiff’s employees accepted service. Plaintiff also argues that Defendant fails to show that her lack of actual notice was not caused by her avoidance of service or excusable neglect.

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. 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.)

A defendant may file a belated responsive pleading up to the time of entry of default. (People v One 1986 Toyota Pickup (1995) 31 CA4th 254, 259–260.) An entry of default cuts off a defendant’s opportunity to file a responsive pleading unless vacated by a judge. (Parish v Peters (1991) 1 CA4th 202, 209.)

Code Civ. Pro. 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...in the presence of… a person apparently in charge of his or her…place of business…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.” (Code Civ. Proc., § 415.20(b).)

Plaintiff’s proof of service filed March 26, 2021 shows that Plaintiff served Defendant via substituted service by leaving a copy of the papers with “Ashley Covarubias” at 9050 Telegraph Rd. STE 201, Downey, CA 90240. Thereafter, the process server mailed a copy of the documents to Defendant at the same address.

Defendant declares under penalty of perjury that the Telegraph Road address is her usual place of business and that she is the Chief Executive Officer of the business there, Cosmetica Latina. (Villareal Decl., ¶3.) Defendant testifies that she does not know an Ashley Covarubias, nor was anyone by that name authorized to accept service for herself. (Id., ¶6.) Defendant also alleges that she first became aware of this action and the default judgment against her on September 19, 2022, when she received a notice from the Los Angeles County Treasurer and Tax Collector that there was a lien placed on Cosmetica Latina. (Id., ¶9.)

Plaintiff in opposition argues that Defendant has actual notice of the action because she was properly served twice at the Telegraph Road address. Plaintiff argues that one of Defendant’s employees, Sheila Covarrubias, has a similar name and the process server must have misheard her name and left the papers with her. Plaintiff argues that Defendant failed to show actual notice was not caused by her avoidance of service or inexcusable neglect. Defendant argues that Plaintiff’s explanation does not add up because multiple documents about the lawsuit were mailed to her.

On reply, Defendant provides a declaration from Sheila Covarrubias, who testifies that she has worked at Cosmetica Beauty at 9050 Telegraph Rd, Downey, CA 90240 since 2017. (Covarrubias Decl., ¶2.) She has never worked as an administrative assistant and was never accepted or received any legal documents regarding this action. (Id.,¶3.)

The evidence shows Defendant did not have actual notice of this action. Although there is a dispute over whether Defendant was properly served, Defendant testified under penalty of perjury that she did not have notice of this action until she received a notice of a lien on Cosmetica Latina. Plaintiff offers speculation that Defendant’s lack of notice was caused by an avoidance of service or inexcusable neglect. Under these circumstances, Defendant meets the requirements of Code Civ. Proc., Section 473.5(a).