Judge: Mark A. Young, Case: 22SMCV00141, Date: 2023-10-04 Tentative Ruling

Case Number: 22SMCV00141    Hearing Date: October 4, 2023    Dept: M

CASE NAME:           1850 Westwood LLC v. Grabarasky, et al.

CASE NO.:                22SMCV00141

MOTION:                  Motion to Vacate Default/Default Judgment

HEARING DATE:   10/4/2023

Legal Standard

In addition to any other grounds for vacating a default judgment, the court has power to set aside a judgment that is void as a matter of law. (CCP § 473(d).)  Unlike the other methods of service, publication of summons in a newspaper of general circulation has additional jurisdictional requirements. For example, the plaintiff must obtain a court order before attempting service by this method and the declaration for publication of summons must be executed by a person who is a competent witness to the proof of facts. (CCP § 415.50(a).) This method of service is strictly construed. (County of Riverside v. Sup.Ct. (1997) 54 Cal.App.4th 443, 450 [“If there is any situation in which strict compliance can reasonably be required, it is that of service by publication.”].) The declaration requirements are also jurisdictional in nature. Unless the declaration contains the requisite factual allegations by a person competent to testify thereto, the court has no power to order service by publication of summons. (Olvera v. Olvera (1991) 232 Cal.App.3d 32.) Any service based on an improper declaration would be ineffective, and any resulting default judgment would be void. (Id.)

The declaration must show reasonable diligence in attempting service by other authorized methods. (CCP § 415.50(a).) Service by publication is not adequate notice for defendants whose whereabouts are known and could be notified by personal service or mail. (Mennonite Bd. of Missions v. Adams (1983) 462 US 791.) Indeed, service by mail, coupled with acknowledgment of receipt, is another manner of service within the meaning of § 415.50. (Transamerica Title Ins. Co. v. Hendrix (1995) 34 Cal.App.4th 740, 745 [affidavit stated defendant's address was “unknown” but plaintiff admittedly knew defendant had a post office box in California at which it could be served by mail].) Therefore, if defendant's mailing address in California is known, reasonable attempts must be made to serve defendant by mail pursuant to section 415.30 before seeking an order for publication of summons. (Id.) Moreover, if the factual allegations of the declaration are proved false, an order for publication based on it must be set aside, invalidating any default judgment obtained against the defendant. (Id. at 746.)

Analysis

Defendants demonstrate that Plaintiff's affidavit is defective as a matter of law. The declaration itself shows, and Defendants’ own sworn statements confirm, Plaintiff knew Defendants’ correct address at the start of its the service efforts. Plaintiff was therefore required to exhaust all other methods, including service by mail with return receipt requested, before being permitted to go to the last resort of notice by publication. Plaintiff submitted its "Application for Publication" with a form affidavit. The form affidavit attests that the summons "could not be served by any of the following methods for the reason shown" and includes various other methods of service, including service by first class mail under Code of Civil Procedure § 415.30 (or by certified mail under CCP § 415.40). Despite this averment, the application itself shows that the process server only made unsuccessful attempts at personal service. There is no evidence that Plaintiff attempted to serve Defendants at the known mailing address. The declaration for publication therefore fails to demonstrate the required reasonable diligence. The resulting default judgment is therefore void on its face.

Additionally, Plaintiff did not mail the requested default or default judgment to Defendants’ known address. (CCP § 587.) Plaintiff’s counsel checked the box stating that a copy of the entry of default was mailed to Defendants. However, the form's box 6(b), where the declarant is to state the address to which the required mailing was sent, states "SERVED BY PUBLICATION" as to each Defendant. This implies that they were not mailed the entry of default form as represented. Plaintiff’s failure to mail the entry of default provides additional reasons to set aside the void default judgment.

Accordingly, the motion is GRANTED.  The May 15, 2023, answer filed by Defendants is the operative answer.