Judge: Katherine Chilton, Case: LAM14K10750, Date: 2022-10-31 Tentative Ruling
Case Number: LAM14K10750 Hearing Date: October 31, 2022 Dept: 25
PROCEEDINGS: MOTION TO SET ASIDE/VACATE VOID
JUDGMENT
MOVING PARTY: Defendant
Adam Seabrook d/b/a Dollars.com
RESP. PARTY: Plaintiff Jobvite Inc.
MOTION TO SET ASIDE VOID JUDGMENT
(CCP § 473(d))
TENTATIVE RULING:
Defendant
Adam Seabrook d/b/a Dollars.com’s Motion to Set Aside Void Judgment is CONTINUED to DECEMBER 6, 2022 at 10:00 A.M in Department
25 at the SPRING STREET
COURTHOUSE. At least 16 court days
before the next scheduled hearing, parties must file and serve supplemental
papers addressing the errors discussed herein.
Failure to do so may result in the Motion being placed off calendar or
denied.
SERVICE:
[
] Proof of Service Timely Filed (CRC, rule
3.1300) OK
[
] Correct Address (CCP §§ 1013, 1013a) OK
[
] 16/21 Court Days Lapsed (CCP §§ 12c,
1005(b)) OK
OPPOSITION: Filed on October 18,
2022. [ ]
Late [ ] None
REPLY: Filed on
October 24, 2022. [ ] Late [ ] None
ANALYSIS:
I.
Background
On August 15, 2014, Plaintiff
Jobvite, Inc. (“Plaintiff” or “Jobvite”) filed a complaint against Defendant Adam
Seabrook d/b/a Dollars.com (“Defendant” or “Seabrook”) for breach of contract,
open book account, account stated, and quantum meruit.
On November 18, 2014, based to
Plaintiff’s request, the Court entered default against Defendant. (11-18-14 Request for Default.) On the same day, the Court dismissed Does 1
to 10 and the fourth cause of action for quantum meruit. (11-18-14 Request for Dismissal.) Default judgment was entered against
Defendant on December 3, 2014 for $6,800.00, in addition to interest and
attorney’s fees and costs. (12-3-14
Default Judgment.)
On October 5, 2022, Defendant filed
the instant Motion to Vacate and Set Aside Void Judgment (“Motion”). On October 18, 2022, Plaintiff filed an
Opposition to the Motion (“Opposition”).
On October 24, 2022, Defendant filed a Reply to the Opposition (“Reply”).
II.
Legal
Standard
Pursuant to Code of Code of Civil
Procedure §473(d), “[t]he 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.”
“The court may set aside a
default judgment which is valid on its face, but void, as a matter of law, due
to improper service. [Citation.]’” (Ellard v. Conway¿(2001)
94 Cal.App.4th 540, 544.) “‘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.]
When considering the facial
validity of a judgment, the Court may only consider the contents of the
judgment roll. (OC Interior Services,
LLC v. Nationstar Mortgage, LLC (2017) 7 Cal.App.5th 1318, 1327
(holding that “[t]o prove that the judgment is void, the party challenging the
judgment is limited to the judgment roll, i.e., no extrinsic evidence
allowed.”).) If the judgment is not void
on its face, the time limitations of Code of Civil Procedure § 473.5
apply. (Trackman v. Kenney (2010)
187 Cal.App.4th 175, 180-81; Schekel v. Resnik (1994) 27 Cal.App.4th
Supp. 1, 3-4 (“[t]he Rogers court held that the time limitation set forth in
Code of Civil Procedure section 473.5 applies by analogy to motions for relief
from default judgment valid on its face but otherwise void for improper
service” [citing Rogers v. Silverman (1989) 216 Cal.App.3d 1114,
1124.]).
III.
Request for Judicial Notice
Defendant requests that the Court
take judicial notice of:
(1)
The March 18, 2011, Delaware Certificate of
Incorporation of Dollars.com Inc.
(2)
The Register of Actions in this case, Jobvite Inc.
v. Adam Seabrook (erroneously named as Adam Seabrook d/b/a Dollars.com),
No. LAM14K10750 (Los Angeles Super.)
(3)
The Proof of Service of Summons attached to Jobvite
Inc.’s November 18, 2011, Request for Entry of Clerk’s Default Judgment in
Jobvite Inc. v. Adam Seabrook (erroneously named as Adam Seabrook d/b/a
Dollars.com), No. LAM14K10750 (Los Angeles Super.)
(4)
The Declaration of Demand attached to Jobvite Inc.’s
November 18, 2011, Request for Entry of Clerk’s Default Judgment in Jobvite
Inc. v. Adam Seabrook (erroneously named as Adam Seabrook d/b/a Dollars.com),
No. LAM14K10750 (Los Angeles Super.)
(5)
Excerpts from the website of the Hague Conference on
Private International Law (HCCH) relating to the Convention of 15 November 1965
on the Service Abroad of Judicial and Extrajudicial Documents in Civil or
Commercial Matters, including the text of the aforementioned Convention,
Australia’s Declaration/Reservation/Notification page identifying the terms of
the aforementioned Convention to which it has and has not agreed.
Defendant’s request is GRANTED. (Evid. Code., § 452(c), (d).)
IV.
Discussion
Defendant seeks to set aside default judgment pursuant to
Code of Civil Procedure § 473(d), arguing that the judgment is void on its face
due to defective service. (Mot. p. 2.) Alternatively, the judgment should be set
aside because Plaintiff knew that Defendant resided in Australia and did not
serve him in compliance with the Hague Service Convention and Code of Civil
Procedure § 413.10. (Ibid.)
The Proof of Service filed on November 18, 2014,
indicates that the Summons and Complaint were served on Defendant Adam Seabrook
at 340 S. Lemon Ave Ste. 3577, Walnut, CA 91789-2706 by substitute
service. (11-18-14 Proof of Service.) The documents were left with Li Luong, the
Manager/Person in charge, on September 2, 2014 at 2:55 PM by a registered
California process server, and on September 4, 2014, they were mailed to this
listed address. (Ibid.) An attached Declaration of Diligence states
that 340 S. Lemon Ave is the address for a private mailbox and that Defendant
was not available at this address on August 25 and 28, 2014. (Ibid. at p. 2.)
Defendant Seabrook states that he was erroneously named
as a defendant because Plaintiff was doing business with Dollars.com, Inc., a
corporation he formed in March 2011. (Seabrook Decl. ¶¶ 1-2, Ex. 1.) All formal communication was between Jobvite
and Dollars.com Inc., not Seabrook as an individual. (Seabrook Decl. ¶ 6; Ex. 4.) Plaintiff also knew that Seabrook resided in
Australia when it attempted to serve him because Seabrook provided this
information during discussions regarding Defendant’s other company,
ProShortlist. (Mot. pp 3-4; Seabrook
Decl. ¶¶ 3-6, Exs. 2-3.) Dollars.com
Inc. ceased to exist in late 2011, but Plaintiff’s collections department
continued to communicate with Seabrook despite his explanation that the
corporation was defunct, and he was living in Australia. (Ibid.) On October 23, 2013, Plaintiff’s attorney
wrote a demand letter addressed to Dollars.com Inc. (Attn: Adam Seabrook) and
sent it to 340 S. Lemon Ave. Ste. 3577, Walnut, CA 91789. (Mot. p. 4; Seabrook Decl. ¶ 6, Ex. 4.) The lawsuit was initiated on August 15, 2014,
and default judgment was entered on December 3, 2014.
Defendant argues that a judgment may be void and should
be set aside if service of process is defective. (Mot. pp. 4-5.) Here, service is defective because an
individual may be served at a private mailbox only if the person’s residential
address cannot be determined. (Mot. pp.
4-5, citing to Code of Civil Procedure § 415.20.) Plaintiff has not provided any evidence that
its process servers attempted to learn of Defendant Seabrook’s address before serving
the pleadings to his private mailbox and no one contacted Defendant or anyone
he knows to inquire about his address in Australia. (Ibid. at pp. 6-7, Seabrook Decl. ¶
7.) The first two attempts listed on the
Proof of Service do not indicate an attempt to leave the papers with an actual
person. (Ibid. at pp. 6-7.) There is also no proof that the manager of
the private mailbox complied with requirements of sending the documents to
Defendant Seabrook. (Ibid.) Since the Proof of Service is defective on
its face, the default judgment is void.
(Ibid.)
Alternatively, Defendant Seabrook argues that the
Plaintiff did not comply with the Hague Service Convention, as required by Code
of Civil Procedure § 413.10(c). (Ibid.
at pp. 7-9.) Even though Plaintiff knew
that Seabrook resided in Australia, it did not attempt to learn of Seabrook’s
address or serve him in Australia. (Ibid.;
Seabrook Decl. ¶¶ 3-6.) Thus, “it
is undeniable that Jobvite’s attempt at service not only failed to comply with
California’s Civil Procedure Code but violated international law.” (Mot. p. 9.)
Plaintiff opposes the Motion for being untimely. (Oppos. p. 1.) Plaintiff argues that the time limitations set
out in Code of Civil Procedure § 473.5 apply to § 473(d) and, thus, if the
motion is based on improper service, it must be made within a reasonable time,
not exceeding the earlier of (1) two years after entry of default
judgment, or (2) 180 days after written notice of default judgment. (Ibid. at p. 2, citing to §
473.5(a).) (Ibid. at p. 2.) Plaintiff states that on May 14, 2015,
Defendant sent an email to Plaintiff’s counsel admitting knowledge of the
lawsuit and disputing liability but did not appear in the case until October
2022. (Ibid. at pp. 3-5; Omrani
Decl. ¶¶ 8-9, Ex. A.) Thus, Defendant
was not diligent in seeking to set aside the default. (Ibid.)
Plaintiff also opposes Defendant’s argument that service
was defective. (Oppos. at p.
5.) Plaintiff’s process server left the
documents at Defendant’s represented address and mailed them to this
address. (Ibid.) Defendant admits receiving these documents in
an email sent on May 14, 2015. (Omrani
Decl. ¶¶ 8-9, Ex. A.) The email attached
by Defendant as Exhibit 2 to show that he informed Plaintiff that he was
residing in Australia does not contain such information, as it only states that
Defendant “was running a ProShortlist in Australia” and is “now in Chicago” to
launch a new business, a reference to Dollars.com Inc. (Ibid. at pp. 5-6.) In his declaration, Defendant does not deny that
he resided or maintained an office in California. (Ibid. at p. 6.) The Certification of Incorporation further
demonstrates that Defendant had an address in California and was not living in
Australia. (Ibid., referring to RJN
Ex. 1, p. 14.) The address on the
subscription order form is also listed as the 340 S. Lemon Ave address. (Omrani Decl. ¶ 10, Ex. B.) Since Defendant has attached Plaintiff’s
counsel’s letter from October 23, 2013, addressed to 340 S. Lemon Ave, Defendant
was indeed receiving mail at this address.
(Ibid. at p. 6.) Plaintiff
argues that service of process should be “be liberally construed to
effectuate service and uphold jurisdiction” and here, there was valid service
of the Summons. (Ibid.) Given that “policies favor getting cases to
trial on time, avoiding unnecessary and prejudicial delay, and preventing
litigants from abusing pertinent legal rules and procedures” and since Defendant
waited more than seven years to bring the instant Motion, Defendant’s Motion
should be denied. (Ibid. at p.
7.)
Additionally, Plaintiff argues that
Defendant was never qualified to transact business in California because it
never registered Dollars.com Inc. in the State of California. (Ibid. at pp. 7-8.) Since he was not qualified to do business in
California as a corporation, Dollars.com Inc. was “nothing more than a dba for
Mr. Seabrook himself.” (Ibid. at
p. 8.) Plaintiff is also not clear
regarding when the corporation was shut down and presumes that it was doing
business with Seabrook as an individual in August 2011. (Ibid.)
Plaintiff requests attorney’s fees and
costs pursuant to Code of Civil Procedure §473(c)(1)(A), for Defendant’s
failure to comply with the Corporations Code and register the corporation in
California and failure to timely respond to the lawsuit. (Ibid. at pp. 8-9.) Plaintiff’s counsel seeks $1,910.27 in
attorney’s fees and costs for expenses associated with filing the Opposition to
the instant Motion. (Omrani Decl. ¶¶
12-14.)
In his Reply to the Opposition, Defendant
states that the timeliness of the Motion “is not an issue if the judgment is
void on its face or if the Hague Service Convention applies.” (Reply p. 2.). Defendant argues that
Plaintiff does not address his statements regarding its obligation to attempt
to personally serve Seabrook before substitute service or his failure to comply
with the Hague Service Convention. (Ibid.) Plaintiff’s reference to Code of Civil
Procedure § 415.20(a), which allows service at a mailing address
concerns service on agents of business entities, not individuals. (Ibid.) Defendant reiterates that service on a
private mailbox would only be authorized as a first attempt if it was the only
address reasonably known; however, Plaintiff’s process servers have not
submitted any information regarding reasonable attempts to determine Defendant’s
address. (Ibid. at p. 4.) Plaintiff
“makes misguided arguments about an alternative California mailing
address and temporary Chicago contact information.” (Ibid. at p. 2.) Plaintiff also “throws in an unsupported
theory it claims entitles it to pursue Seabrook personally, as opposed to the
corporation with which it contracted,” however, “an officer of a corporation is
not automatically subject to the corporation’s liability.” (Ibid.).
Furthermore,
Defendant reiterates that he was living in Australia at the time, as shown by a
copy of his passport. (Ibid. at
p. 5.) The San Francisco address listed
in the Certificate of Incorporation is the address of his attorney in San
Francisco and was Seabrook’s “mailing address,” which “cannot be equated with
the place a person resides.” (Ibid.,
Supp. Seabrook Decl. ¶ 2.) His communication with Plaintiff’s sales
representative shows that he was a resident of Australia and only temporarily
resided in Chicago. (Reply p. 5.) Defendant argues that both the San Francisco
and Chicago addresses are irrelevant, as he was not served at these
addresses. (Ibid. at pp.
5-6.) Finally, Defendant opposes
Plaintiff’s request for attorney’s fees and costs. (Ibid. at pp. 9-10.)
The Court finds that Defendant’s
Motion, based on Code of Civil Procedure § 473(d) for improper service is
untimely. The time limitations of §
473.5 apply to § 473(d) when the Motion is based on improper service and the
Proof of Service is not void on its face.
(Rogers v.
Silverman (1989) 216 Cal.App.3d 1114,
1124.) Furthermore, the email communication
submitted by Plaintiff as Exhibit A to the Opposition demonstrates that
Defendant was aware of the legal proceedings on May 14, 2015 and has not provided
the Court with any explanation regarding the reason he filed the Motion more
than seven years later. (Omrani Decl. ¶
9, Ex. A.) Thus, the Court cannot vacate
the default and default judgment based on § 473(d) for improper service.
Nonetheless, there remains a
possibility that the judgment may be void if Plaintiff sued the wrong
Defendant. Plaintiff argues that Adam
Seabrook is liable because Dollars.com Inc. was not registered with the State
of California and therefore, was not qualified to transact business in the
State of California. (Oppos. pp.
7-8.) It also presumes that Seabrook
continued to do business with Plaintiff after the corporation went out of business. (Ibid.) Seabrook contends that he was erroneously
sued as an individual and should not be liable for the corporation’s debt. (Reply p. 2.)
He has submitted the Delaware Certificate of Incorporation of
Dollars.com Inc. (RJN Ex. 1.)
To determine whether Defendant was
erroneously sued and whether the Default Judgment is void on this basis, the
Court continues the hearing and orders the parties to submit memoranda of
points and authorities of no more than five (5) pages each, addressing the
issue of whether Defendant Adam Seabrook dba Dollars.com was the proper
defendant in the action. Parties should
also file additional evidence to show Dollars.com Inc.’s dates of activity, and
the business relationship between Jobvite, Inc., Dollars.com Inc., and Adam
Seabrook.
V.
Conclusion
& Order
For the foregoing reasons,
Defendant
Adam Seabrook’s Motion to Set Aside Void Judgment is CONTINUED to DECEMBER 6, 2022 at 10:00 A.M. in Department
25 at the SPRING STREET
COURTHOUSE. At least 16 court days
before the next scheduled hearing, parties must file and serve supplemental
papers addressing the errors discussed herein.
Failure to do so may result in the Motion being placed off calendar or
denied.
Moving party to give notice.