Judge Lee S. Arian, Case Number: 22STCV10494, Date: 2024-07-01 Tentative Ruling

Judge: Lee S. Arian, Case: 22STCV10494, Date: 2024-07-01 Tentative Ruling

Case Number: 22STCV10494 Hearing Date: July 1, 2024 Dept: 27

Hon. Lee S. Arian, Dept 27¿

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MOTIONS FOR RELIEF FROM DEFAULT¿

Hearing Date: 7/1/24¿

CASE NO./NAME: 22STCV10494 TPG (CERRITO) ACQUISITION, LLC vs LEO’S TRUCK SERVICE, INC & FELIPE GONZALEZ

Moving Party: Defendant Leo’s Trucking Service, Inc., and Felipe Gonzalez

Responding Party: Plaintiff¿

Notice: Sufficient¿

Ruling: MOTIONS FOR RELIEF FROM DEFAULT¿FOR DEFENDANTS FELIPE GONZALEZ AND LEO’S TRUCKING ARE DENIED

Legal Standard

CCP §473.5

CCP §473.5(a) permits the court to vacate a default judgment “[w]hen 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.” The phrase “actual notice” means “genuine knowledge of the party litigant.” (Tunis v. Barrow (1986) 184 Cal. App. 3d 1069, 1077.)¿

"A party seeking relief under section 473.5 must provide an affidavit showing under oath that his or her lack of actual notice in time to defend was not caused by inexcusable neglect or avoidance of service. " (Anastos v. Lee (2004) 118 Cal.App.4th 1314, 1319.) The moving party has the burden of showing good cause for relief from a default or a default judgment. (Tunis v. Barrow (1986) 184 Cal.App.3d 1069, 1079-1080.)

Substituted Service

Both corporations and individuals can be served through substituted service pursuant to CCP § 415.20

Under subsection (a), a corporation can be served, in lieu of personal delivery of a copy of the summons and complaint to the person to be served as specified in Section 416.10, 416.20, 416.30, 416.40, or 416.50, a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address, other than a United States Postal Service post office box, with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left.

Under subsection (b), an individual can be served, if a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, 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, 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, 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, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left.

Discussion¿

On March 8, 2023, default judgment was entered against Defendants Leo’s Trucking Service, Inc., and Felipe Gonzalez. On May 28, 2024, more than a year after the default judgment was entered, Defendants moved the Court for relief from default judgment under CCP § 473.5, arguing that they did not receive actual notice.

A party seeking relief under CCP § 473.5 must show both a lack of actual notice and that their lack of actual notice in time to defend was not caused by inexcusable neglect or avoidance of service.

Leo’s Trucking Services

Plaintiff’s proof of service showed that on April 6, 2022, Joselyn M. Monterroso, the agent for service for Defendant, was allegedly served through substitute service at 1328 W. 55th Street, Los Angeles, CA 90037, through co-occupant Illiana Flores. A copy of the summons and complaint was subsequently mailed to Defendant at 1328 W. 55th Street, Los Angeles, CA 90037. Defendant Leo’s Trucking argues that it was not aware of the present lawsuit until early this year (Purcell Decl. ¶6; Monterroso Decl. ¶¶5, 8). Joselyn Monterroso, the agent for Defendant, also declared that she does not and has never lived at 1328 W. 55th Street.

As pointed out by Plaintiff in the opposition, there are several issues with the declaration. First, a corporation may be served by leaving a copy of the summons and complaint during usual office hours at its office or with the person who is apparently in charge thereof. Although Defendant argues that Monterroso never lived at the location, a corporation can be served by substitute service by leaving a copy of the summons and complaint with an individual apparently in charge of Defendant’s office. The proof of service states that it was served on someone who was in charge of the premises listed as Defendant’s mailing and principal address in its filing with the Secretary of State. Defendant does not address this point in the reply, and no declaration by Defendant states that 1328 W. 55th Street is not the principal or mailing address for Defendant.

Furthermore, Monterroso’s declaration does not state her role for Defendant or whether she is making the declaration on behalf of Defendant. Therefore, it is unknown if Defendant or another member of the company received actual notice of the lawsuit.

Based on the foregoing analysis, Defendant failed to meet its initial burden in showing that Defendant did not have actual notice of the case or that the lack of notice was not due to inexcusable neglect.

Felipe Gonzalez

On April 21, 2022, Mr. Gonzalez was served through substituted service at 1328 W. 55th St., Los Angeles, CA 90037, through a co-occupant, Kayleen Flores. An affidavit of diligence was attached to the proof of service, showing that the process server attempted to personally serve Gonzalez 8 times at different addresses, including the 55th Street address. Defendant Gonzalez filed a declaration stating that he did not live at that address at that time or ever before (Gonzalez Decl. ¶6).

Under CCP § 415.20, if 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, 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 or place of business.

Gonzalez’s declaration is silent on whether 1328 W. 55th St. is his usual place of business or usual mailing address. Gonzalez’s declaration only states that he never lived there. Gonzalez filed a reply but did not address this point or provide a supplemental declaration stating that 1328 W. 55th St. is not his usual mailing address or usual place of business. Defendant might have shown that he did not have actual notice, but failed to show how this lack of notice was not caused by inexcusable neglect.

Thus, the present motions are DENIED.

PLEASE TAKE NOTICE:¿

If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept27@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.

Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿You should assume that others may appear at the hearing to argue.

If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.