Judge Malcolm Mackey, Case 20STUD04202 2022-09-06 Tentative Ruling

Judge: Malcolm Mackey, Case: 20STUD04202, Date: 2022-09-06 Tentative Ruling

Case Number: 20STUD04202 Hearing Date: September 6, 2022 Dept: 55

FITZGERALD v. HOLONIS, INC. 20STUD04202

Hearing Date: 9/6/22, Dept. 55

Add-on: MOTION FOR RELIEF FROM DEFAULT JUDGMENT UNDER C.C.P. SECTION 473.

Notice: Okay

Opposition

MP: Defendants

RP: Plaintiff

Summary

On 12/7/20, Plaintiff DANIEL FITZGERALD filed an Unlawful Detainer Complaint alleging that, regarding 1650 MARLAY DR. LOS ANGELES, CA 90069, defendants were holding over about one month after the termination of a fixed-term lease.

MP Positions

Moving parties request an order granting relief from the default judgment, on grounds including the following:

· Plaintiff’s process servers declare that they effected service by posting and mailing at the subject premises, but such service was not proper for Hollis, who was not a tenant under the lease, or an occupant of the premises who could have gotten notice of the summons posting.

· Plaintiff offers no evidence that it made any diligent efforts to serve Hollis personally at his residence or place of business and offers no evidence to believe that Hollis would have been present at the subject premises.

· Defendant Richard Hollis was never a tenant on the lease, but signed the lease as CEO of the tenant Holonis, Inc., not as an individual.

· Information regarding the agent for service of process of Holonis, Inc. was publicly available on Secretary of State’s website. Plaintiff made no attempt to serve them personally, and they did not receive at their corporate P.O. box service of the complaint.

· By posting and mailing solely at the premises, rather than serving Holonis, Inc.’s agent of service of process, and continuing to serve documents at the premises even after it was vacant, Plaintiff never served Hollis personally and took the risk that Holonis, Inc. had not received actual notice of its lawsuit.

· Defendants were unaware of the unlawful detainer action and default judgment until July 11, 2022, because notice of all court-documents were mailed/served only at the vacant premises.

RP Positions

Opposing party advocates denying, for reasons including the following:

· On January 11, 2021, Plaintiff’s registered process server served defendants with the Summons and Complaint in full statutory compliance. CCP § 415.45. They were posted, and thereafter mailed by first class certified mail, postage prepaid, from Valley Village.

· Defendants’ claim of no actual notice of this suit is unbelievable, and they have not shown good cause. Rather, Defendants willfully and inexcusably failed to take reasonable action to protect their interests.

Tentative Ruling

The motion is granted.

The Court vacates and sets aside defaults entered 2/28/22 and default judgment filed 3/16/22.

The proposed Answer attached to the Complaint is deemed filed and served this date.

As a basis for granting relief, the Court finds that the declarations attached to the motion prove that defendants never received notice in time to defend, including because the process servers’ mailing of the summons and complaint was never received. In contrast, the opposing papers show no personal knowledge as to defendants’ awareness of the lawsuit.

However, service by posting was valid, to support personal jurisdiction, including because the process server declared reasonable diligence in making personal service, and since posting is allowed as to even apparent occupants (CCP § 415.45), without any requirement of being a signatory tenant. Further, the written lease is somewhat ambiguous as to in what capacity the individual defendant signed the lease, when it simply specifies the signatures of the entity “by” the individual. Beyond that, the Court is not authorized to decide the merits of the capacity of the signatory, in this limited procedure.

Relief from defaults is available in Unlawful Detainer (U.D.) actions, including under CCP Sections 473 and 473.5. Cal. Prac. Guide Landlord-Tenant § 8:519 et seq. “Section 473.5 requires that the motion to set aside the default judgment 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’ and ‘a copy of the answer, motion, or other pleading proposed to be filed in the action.’” Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 861.

Court findings as to conflicting proof regarding whether a summons and complaint were properly served are upheld if based upon substantial evidence. Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1182. A Court errs in ruling on the merits of a complaint in deciding a motion to quash a summons made on the ground of defective service. Nelson v. Horvath (1970) 4 Cal. App. 3d 1, 5.

As to motions to quash, the burden is on plaintiffs to prove that jurisdictional grounds exist based upon authorized service. Cal. Prac. Guide Landlord-Tenant § 8:170 (citing Mihlon v. Sup.Ct. (1985) 169 CA3d 703, 710).

In U.D. actions, service of the summons and complaint may be like in civil actions, with the addition of posting and mailing in U.D. cases, where the party cannot with reasonable diligence be served in any other manner . CCP § 415.45; Cal. Prac. Guide Landlord-Tenant § 4:462 et seq.

“‘A director, officer or other agent, signing a corporate contract containing a promise in the proper form for an individual, is not relieved from personal liability by the addition to his name of terms such as 'director,' 'president' or the like. These terms are regarded merely as descriptio personae, that is, a term descriptive of the person rather than the relationship in which he signs the agreement….’" Sebastian Int'l v. Peck (1987) 195 Cal. App. 3d 803, 808. “[A] signatory's mere addition of a title following the signature on a document otherwise purporting to be a personal guaranty does not change its personal character.” Home Fed. Sav. & Loan Ass'n v. Ramos (1991) 229 Cal. App. 3d 1609, 1613.