Judge Jill Feeney, Case 21STCV29639 2022-12-29 Tentative Ruling

This is an action for negligence arising from a vehicle collision which took place in August 2019. Plaintiff Simon Wong filed his Complaint against Defendants Francisco Avila, the Tom Malloy Corporation, Trench Shoring Company, and Jessica Fernandez on August 10, 2021.

Avila moves to set aside default and quash service of summons on the grounds that he did not have actual notice of the action in time to defend and because he was never properly served with notice of this action.

Plaintiff argues that Avila did not provide evidence that service was improper because the motion is only supported by the declaration of Avila’s counsel. Plaintiff also argues that by filing these motions, Avila makes a general appearance in this case.

Avila argues that his correct address was on the traffic collision report that the police took at the time of the subject accident. Avila also argues that he does not appear in this case because he is making a special appearance.

“A defendant . . . may serve and file a notice of motion for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her. . . .” (Code Civ. Proc., § 418.10(a).) The motion must be filed on or before the last day on which the defendant must plead or within any further time that the court may for good cause allow. (Id.)

A motion to set aside default under Code Civ. Proc., section 473.5 is not a general appearance when filed concurrently with a motion to quash service of summons under Code Civ. Proc., section 418.10. (Code Civ. Proc., section 418.10, subd. (d).)

“[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.]” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) “[T]he filing of a proof of service creates a rebuttable presumption that the service was proper” but only if it “complies with the statutory requirements regarding such proofs.” (Id. at 1441-1442.) When a defendant moves to quash service of the summons and complaint, the plaintiff has “the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.” (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868.) “A court lacks jurisdiction over a party if there has not been proper service of process.” (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.)

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 competent member of the household . . . 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., section 415.20(b).)

The California Supreme Court has held that “failure to have served the summons and complaint is a defense to an action on a judgment.” (Ibid. at 202, referring to Hill v. City Cab etc. Co. (1889) 79 Cal. 188, 190-191.) “‘Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.’” (AO Alfa-Bank v. Yakovlev (2018) 21¿Cal.App.5th 189, 202.) “To establish personal jurisdiction, compliance with statutory procedures for service of process is essential.” (Kremerman v. White (2021) 71¿Cal.App.5th 358, 371.) Defendant’s knowledge of the action does not dispense with statutory requirements for service of summons. (Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466.)

Courts may set aside default or default judgment pursuant to Code of Civil Procedure, section¿473.5 for lack of actual notice. “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 of Civ. Proc., section 473.5.) Furthermore, the notice must 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 parties first dispute whether Avila’s combined motions constitute a general appearance. Code Civ. Proc., section 418.10, subd. (d) provides that a motion to set aside default under section 473.5, when joined with a motion to quash service of summons under section 418.10, is not a general appearance. Here, Avila filed a motion to set aside default under section 473.5 joined with a motion to quash service of summons under section 418.10. Thus, Avila’s motions do not constitute a general appearance.

Avila first moves to set aside default pursuant to Code Civ. Proc., section 473.5 on the grounds that he had no actual notice of this action in time to defend because the Complaint was served at his parents’ residence. Avila argues on reply that good cause exists under Code Civ. Proc., section 473(b) to set aside default. However, the notice of motion and motion only reference section 473.5. Because Avila may not pursue new legal theories for the first time on reply, the Court will only consider Avila’s arguments pertaining to section 473.5.

The defendant making a motion to set aside default under Code Civ. Proc., section 473.5 must show that he acted with diligence upon learning of default judgment and that the lack of notice was not caused by inexcusable neglect or an avoidance of service. (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180; Anastos v Lee (2004) 118 CA4th 1314, 1319.) For example, a defendant who had actual notice of an action 2 weeks before an answer was due, knew their answer was due, and refused to answer had actual notice in time to defend the action. (Ellard v Conway (2001) 94 CA4th 540, 547–548, 114 CR2d 399.)

Here, Avila’s counsel testifies that Plaintiff served his Complaint on via substituted service by leaving the documents with a John Doe, allegedly Avila’s uncle, at 918 E. Stockton Ave., Compton, CA on May 17, 2022. (Chin Decl., ¶¶5-6.) Avila’s counsel first became aware of this service on July 15, 2022, when Plaintiff propounded his first set of discovery requests on Avila. (Id., ¶7.) Avila’s counsel contacted Plaintiff’s counsel on July 15, 2022 and August 18, 2022, stating Avila did not live at the Stockton Ave. address and that service was improper. (Id., ¶8.) Plaintiff’s counsel stated during a phone call with Avila’s counsel, Sopanha Nemanpour, on August 18, 2022 that Plaintiff’s discovery requests would be withdrawn and that no default would be taken because service was improper. (Motion, Exh. D.) However, on October 7, 2022, Plaintiff filed a request for entry of default and default was entered against Avila.

Plaintiff’s counsel, Hess Panah, testifies that he spoke with Avila’s insurance carrier and notified them that he had been served. (Panah Decl.) Plaintiff’s counsel also testifies that he notified Avila’s counsel that service was perfected on him and Plaintiff had been instructed by the Court to take default. (Id.) Plaintiff’s counsel does not address the August 18, 2022 meet and confer communications and does not appear to have been involved in that meeting. Plaintiff’s counsel’s declaration is also vague and contains no dates.

The evidence shows that Plaintiff’s counsel, Sophana Nemanpour, represented that no default would be taken against Avila and that Plaintiff’s discovery requests would be withdrawn. Avila’s counsel relied on these representations and waited for Plaintiff to properly effect service on Avila at his proper address. Thus, Avila’s lack of notice was not caused by neglect or avoidance on Avila’s part. Avila relied on Plaintiff’s counsel’s representations and waited for Plaintiff to properly serve Avila with notice of this action. Even if Plaintiff knew of the action through other sources, Plaintiff may not dispense of the statutory requirements for service of summons. Avila’s motion to set aside default is granted.

On a motion to quash service of summons, the plaintiff has the burden of establishing by a preponderance of the evidence the prima facie facts entitling the court to assume jurisdiction, including whether service was in compliance with statutory requirements. (Lebel v Mai (2012) 210 CA4th 1154, 1160.) A court may rely upon the verified declarations of the parties and other competent witnesses. (Buchanan v. Soto (2015) 241 CA4th 1353, 1362.) Authenticated documentary evidence may also constitute competent evidence. (Paneno v Centres for Academic Programmes Abroad, Ltd. (2004) 118 CA4th 1447, 1454.)

Here, Plaintiff relied on skip trace reports to serve Avila with notice of this action. (Panah Decl.; Opp., Exh. 1, 2.) However, the skip trace reports merely show that 918 E Stockton Ave., Compton, CA 90221 is Avila’s father’s property, that Avila and his father have the same name, and that Avila possibly receives mail there. (Opp., Exh. 1.) The second report is a screenshot showing the same address. (Opp., Exh. 2.) It is unclear how these skip traces were performed and whether the Stockton Ave. address is Avila’s usual place of abode or mailing address. On the other hand, Avila submits a traffic collision report Plaintiff submitted in response to Defendant Tom Malloy Corporation’s demand for production. (Reply, Exh. A.) The report lists Avila’s address as 410 W Cherry St., Compton, CA 90222. (Id.)

Plaintiff’s evidence is insufficient to show that 918 E Stockton Ave., Compton, CA 90221 is Avila’s usual place of abode or mailing address. Thus, Plaintiff failed to effect substituted service as required by Code Civ. Proc., section 415.20. Avila’s motion to quash service of summons is granted.