Judge Mark E. Windham, Case Number: 24STLC02022, Date: 2024-09-12 Tentative Ruling

Judge: Mark E. Windham, Case: 24STLC02022, Date: 2024-09-12 Tentative Ruling

Case Number: 24STLC02022 Hearing Date: September 12, 2024 Dept: 26

Johnson v. Socially Oriented United Living, Inc., et al.

MOTION TO VACATE ENTRY OF DEFAULT

(CCP § 473(d), equity)

TENTATIVE RULING:

Defendant Socially Oriented United Living, Inc.’s Motion to Vacate Default and Request for OSC Re Sanctions is GRANTED. THE DEFAULT ENTERED ON JULY 2, 2024 IS HEREBY VACATED.

ORDER TO SHOW CAUSE REGARDING SANCTIONS FOR FAILURE TO FILE PROOF OF SERVICE OF THE SUMMONS AND COMPLAINT IS SET FOR DECEMBER 10, 2024 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

ANALYSIS:

On March 20, 2024, Plaintiff Gregory Johnson (“Plaintiff”) filed the instant action for breach of contract against Defendant Socially Oriented United Living, Inc. (“Defendant”). Following Defendant’s failure to file a responsive pleading, the Court entered default on July 2, 2024.

Defendant filed the instant Motion to Vacate Default and Request for OSC Re Sanctions on July 24, 2024. Plaintiff filed an opposition on September 5, 2024 and Defendant replied on the same date. To the extent Plaintiff contends it was not properly served with the Motion because electronic service was not to the address on file, the Court agrees. “Before first serving a represented person electronically, the person effecting service shall confirm the appropriate electronic service address for the counsel being served.” (Code Civ. Proc., § 1010.6, subd. (b)(3).) Defendant contends that it served Plaintiff’s counsel at the email address listed on the State Bar website, Plaintiff’s counsel’s website, and the email address from which Plaintiff’s counsel emailed defense counsel. No evidence is provided in support of this contention. Even if the Court found this to be true, the Court does not find that any of these means operates to confirm the correct electronic address for service. An attorney or law office often has more than one email address; it is incumbent on the serving party to ensure that the email address to which papers are sent is the specific address designated for service instead of making an assumption. As Plaintiff’s counsel points out, the electronic address registered with this court for this case is info@nussbaumapc.com. (Opp., Nussbaum Decl., ¶7; Uss Decl., Exh. 4.) The Motion was not emailed to that address. (Reply, Safyan Decl., Exh. H.) Therefore, the Court will consider both the opposition and reply papers.

Discussion

Defendant moves to vacate the entry of default pursuant to Code of Civil Procedure section 473, subdivision (d) or on equitable grounds. Defendant also moves for an order to show cause regarding sanctions.

First, Defendant moves to vacate the default on grounds that it is void, pursuant to Code of Civil Procedure section 473, subdivision (d), which states that “[t]he court may, .... on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc., § 473, subd. (d).) Defendant argues that the entry of default is void because the proof of service of the Summons and Complaint was not filed within 60 days after the filing of the Complaint, as required by Cal. Rules of Court, rule 3.110(b). In fact, the papers were not served on Defendant within 60 days of the filing of the Complaint, which is also required. However, the Motion does not demonstrate why this renders to entry of default void. Non-compliance with mandatory statutes does not render a resulting order or judgment void:

[A] party's failure to comply with a mandatory requirement “does not necessarily mean a court loses fundamental jurisdiction resulting in ‘an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.’ ” (Allen, supra, 42 Cal.4th at p. 101, fn. 5, 64 Cal.Rptr.3d 124, 164 P.3d 557, quoting Abelleira, supra, 17 Cal.2d at p. 288, 109 P.2d 942.) It is a “misuse of the term ‘jurisdictional’ ... to treat it as synonymous with ‘mandatory’ ” as a general matter. (2 Witkin, Cal. Procedure, supra, Jurisdiction, § 4, p. 578.) “There are many time provisions, e.g., in procedural rules, that are not directory but mandatory; these are binding, and parties must comply with them to avoid a default or other penalty. But failure to comply does not render the proceeding void” in a fundamental sense.

(Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330, 341.) Plaintiff’s late-filed proof of service is not grounds to vacate the entry of default as void under Code of Civil Procedure section 473, subdivision (d).

Next, Defendant argues that the default is void due to lack of proper service. This basis for vacating a default as void is well-supported by case law. (See Kremerman v. White (2021) 71 Cal.App.5th 358, 370 [citing Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1020].) “When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.’” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.) A proof of service containing a declaration from a registered process server invokes a rebuttable presumption affecting the burden of producing evidence, of the facts stated in the return. (Cal. Evid. Code, § 647; see American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390.) The party seeking to defeat service of process must present sufficient evidence to show that the service did not take place as stated. (See Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1428; cf. People v. Chavez (1991) 231 Cal.App.3d 1471, 1483 [“If some fact be presumed, the opponent of that fact bears the burden of producing or going forward with evidence sufficient to overcome or rebut the presumed fact.”].) Merely denying service took place without more is insufficient to overcome the presumption. (See Yadegar, supra, 194 Cal.App.4th at 1428.)

Defendant presents evidence that it was not served as indicated by the proof of service, which states that the Summons and Complaint were left with “Maria Doe, a competent member of the household” at 7227 Oakwood Ave, Los Angeles, California. (Proof of Substitute Service, ¶¶4-5.) The service address, however, was not Defendant’s usual office or mailing address, as required for substitute service. (Motion, Safyan Decl., Exhs. B, D-E.) Defendant, having submitted evidence that disputes the truth of the contents of the proof of service, has carried its burden of proof to challenge the manner of service. The burden now shifts to Plaintiff to demonstrate that service was proper.

In opposition, Plaintiff contends that Defendant was actually personally served with the Summons and Complaint by delivering the papers to Maria Heifetz, Defendant’s secretary, as permitted by Code of Civil Procedure section 416.10, subdivision (b). No evidence is provided to show that the person to whom the papers were delivered, identified as “Maria Doe, a competent member of the household” is Maria Heifetz, Defendant’s secretary. This argument is mere speculation by Plaintiff. (Motion, p. 5:25-27.) Nor does Plaintiff offer any evidence regarding the service address to demonstrate that this was the residence of Yigal Keren, Defendant’s president, and Maria Heifetz. (Ibid.) Therefore, the Court finds that the entry of default is void for lack of proper service of the Summons and Complaint and should be vacated under Code of Civil Procedure section 473, subdivision (d).

Finally, Defendant asks that the Court set an order to show cause regarding sanctions for Plaintiff and/or Plaintiff’s counsel’s failure to timely serve the Summons and Complaint and to file proof of service of the same. This order to show cause is authorized by Cal. Rules of Court rule 3.110(f).

Conclusion

Defendant Socially Oriented United Living, Inc.’s Motion to Vacate Default and Request for OSC Re Sanctions is GRANTED. THE DEFAULT ENTERED ON JULY 2, 2024 IS HEREBY VACATED.

ORDER TO SHOW CAUSE REGARDING SANCTIONS FOR FAILURE TO FILE PROOF OF SERVICE OF THE SUMMONS AND COMPLAINT IS SET FOR DECEMBER 10, 2024 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Court clerk to give notice.