Judge: Joseph Lipner, Case: 21STCV19397, Date: 2024-02-01 Tentative Ruling

Case Number: 21STCV19397    Hearing Date: February 1, 2024    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendant Daniel Sturridge (“Defendant”) moves to set aside the default and default judgment entered in favor of Plaintiff Foster Washington (“Plaintiff”) against him on December 21, 2021.

The Court GRANTS Defendant’s motion.  Defendant shall respond to Plaintiff’s complaint within 30 days.

Background

          This is a breach of contract action. Plaintiff alleges that he found and returned Defendant’s lost dog and filed this action to recover the promised reward. The facts stated here are taken from the allegations in Plaintiff’s Complaint.

          In July 2019, Defendant announced on social media that he had been burglarized and his dog was stolen. Defendant offered a reward of $30,000.00 for the return of his dog.

          Plaintiff found and returned Defendant’s dog, but Defendant did not pay the reward.

          Plaintiff filed this action against Defendant on May 24, 2021, raising claims for (1) breach of oral contract; and (2) breach of written contract.

          Plaintiff’s proof of service filed on August 20, 2021, states that Defendant was served on July 3, 2021 at 2351 Mt. Olympus Drive, Los Angeles, CA 90046 by substituted service. (Proof of Service of Summons at p. 1.)

          The Court entered Default against Defendant on November 8, 2021.

          The Court entered default judgment against Defendant on December 21, 2021 in the total amount of $30,085.00.

          Defendant filed this motion on January 3, 2024, contending that he was not properly served in this action. Plaintiff filed an opposition and Defendant filed a reply.

Discussion

Defendant relies on Civil Procedure Code section 473, subd. (d), which states as follows.  “The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc., § 473, subd. (d).)  Defendant argues that the judgment here is void for lack of proper service. 

          “To establish personal jurisdiction, it is essential to comply with the statutory procedures for service of process.” (OC Interior Services, LLC v. Nationstar Mortgage, LLC (2017) 7 Cal.App.5th 1318, 1330.) “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 [citation and quotation marks omitted].) “Whether the lack of jurisdiction appears on the face of the judgment roll, or is shown by extrinsic evidence for a judgment that appears valid on its face, in either case the judgment is for all purposes a nullity—past, present and future.” (Ibid. [citation and quotation marks omitted].)

          The Court grants Defendant’s motion for two separate and independent reasons.

          First, the proof of service on which the default judgment is based is defective on its face.  The proof of service states that the papers were served “by substituted service” on July 3, 2021.  (1/3/2024 Leventhal Decl. Ex. A.)  They were served by leaving the documents with an unidentified person who was a “competent member of the household.”  (Ibid.)  However, the proof of service fails to check box number (5), which states that it attaches a declaration of diligence reporting the actions taken first to attempt personal service.  (Ibid.)

Accordingly, the proof of service, on its face, fails to establish substituted service.  It does not comply with Civil Procedure Code section 415.20, which requires that substituted service is allowed only if “the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served.”  Accordingly, considering only the face of the proof of service, entry of the default and default judgment was not proper.

Second, the evidence in the court record does not support Plaintiff’s contention that Defendant was personally served. The process server states in her recently filed declaration that she “personally served” Defendant and that she “believe[s]” that she served “the real Daniel Sturridge, because he matched his description.”  (1/19/2024 Wolford Decl. ¶ 6.)  But this contradicts the proof of service filed back in 2021, which asserted that substituted service, and not personal service, had been effected.  To put matters plainly, prior to Defendant’s motion there is no indication whatsoever in the court record that Defendant was ever personally served.  Moreover, the process server’s stated basis for her current belief that she personally served Defendant himself is not sufficiently strong to show that Defendant was, in fact, served.

In addition, there is unequivocal evidence from Michelle Wizman, the CEO of Mount Management, Inc. that Defendant did not live at or have access to 2351 Mount Olympus Drive on July 3, 2021, when Defendant was allegedly served there in 2021.  (1/3/2024 Wizman Decl. ¶5.)  He last lived at that address in 2019.  (Id. ¶ 4.)  Plaintiff’s only response to this evidence is to question whether Mount Management, Inc. controls the property at 2351 Mount Olympus Drive and whether Ms. Wizman is who she says she is.  But the evidence submitted by Defendant on reply answers both those questions in the affirmative.  (1/24/2024 Reply Leventhal Decl. Exs. A-B.)

For these reasons, the Court grants Defendant’s motion to vacate the default and default judgment.