Judge Lisa K. Sepe-Wiesenfeld, Case Number: 23SMCV00866, Date: 2025-05-20 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 23SMCV00866, Date: 2025-05-20 Tentative Ruling

Case Number: 23SMCV00866 Hearing Date: May 20, 2025 Dept: N

TENTATIVE RULING

Defendant Deka USA Property Two LP’s Motion to Set Aside Default is GRANTED.

Defendant Deka USA Property Two LP to give notice.

REASONING

Defendant Deka USA Property Two LP (“Defendant”) moves the Court for an order setting aside

the default entered against it on September 18, 2024 as void on the ground that Plaintiff Opel

Barnes (“Plaintiff”) failed to personally serve an authorized individual for Defendant, a

corporation, and Defendant lacked actual notice of the action. While the Court notes that

Plaintiff’s opposition was not timely filed, Defendant’s reply brief exceeds the page limit set

forth in rule 3.1113(d) of the California Rules of Court, such that this brief, too, must be

“considered in the same manner as a late-filed paper” (Cal. Rules of Court, rule 3.1113(g)). In

the interest of resolving this motion on the merits, the Court opts to consider both the opposition

and the reply in full.

In the event service did not result in notice of the action to a party, section 473.5 of the Code of

Civil Procedure, subdivision (a), provides, in relevant part:

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.

Further, “a default judgment entered against a defendant who was not served with a summons in

the manner prescribed by statute,” thus failing to establish personal jurisdiction over the

defendant, “is void.” (Dill v. Bernquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.)

Pursuant to Code of Civil Procedure section 473, subdivision (d), the Court may “set aside any

void judgment or order,” and “a void judgment may be set aside at any time” (Milrot v. Stamper

Medical Corp. (1996) 44 Cal.App.4th 182, 188).

Code of Civil Procedure section 416.10, subdivisions (a) and (b), state that “[a] summons may be

served on a corporation by delivering a copy of the summons and the complaint . . . [t]o the

person designated as agent for service of a process” or “[t]o the president, chief executive

officer, or other head of the corporation, a vice president, a secretary or assistant secretary, a

treasurer or assistant treasurer, a controller or chief financial officer, a general manager, or a

person authorized by the corporation to receive service of process.” The proof of service filed on

May 2, 2023 states that Defendant was served by personal service on “Ariesle Morales,”

identified as the “Store manager” at 2301 Pico Boulevard, #35, in Santa Monica on April 18,

2023. It is not clear from the proof of service how a store manager would fall within the purview

of Code of Civil Procedure section 416.10, subdivisions (a) or (b).

In opposition, Plaintiff contends that service was proper because it was substituted service made

when personal service cannot be achieved. First, the proof of service does not state that service

was substituted service; it states that it was personal service. Second, as to substituted service

upon a corporation, Code of Civil Procedure section 415.20, subdivision (a), provides as follows:

In lieu of personal delivery of a copy of the summons and complaint to the person

to be served as specified in [Code of Civil Procedure section 416.10, et seq.], 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. When service is effected by leaving a copy of the summons

and complaint at a mailing address, it shall be left with a person at least 18 years

of age, who shall be informed of the contents thereof. Service of a summons in

this manner is deemed complete on the 10th day after the mailing.

Again, the proof of service indicates that Defendant was served through service on a store

manager. This cannot constitute personal service of Defendant because a store manager does not

fall within the individuals identified in Code of Civil Procedure section 416.10. This also cannot

be considered sufficient substituted service because there is no indication in the proof of service

that a copy of the summons and complaint were mailed to Defendant. Thus, there is no indication

that Defendant was properly served with the summons and complaint.

The Court need not determine whether Defendant acted diligently in setting aside the default, or whether a

meritorious defense exists, because Defendant was not properly served, making the default void,

such that it can be set aside at any time. Further, whether Defendant received a copy of the

complaint is inapposite where Defendant was not properly served, and Plaintiff provides no

evidence of who received a summons and complaint by mail. For these reasons, Defendant Deka

USA Property Two LP’s Motion to Set As Aside Default GRANTED

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