Judge: Mark H. Epstein, Case: 21SMCV01907, Date: 2023-01-20 Tentative Ruling

Case Number: 21SMCV01907    Hearing Date: January 20, 2023    Dept: R

The motion to set aside the default is DENIED.

Plaintiff filed a collections action against defendants.  A default judgment was entered on May 3, 2022.  Defendants claim that they had no actual notice of the action and brought the instant motion to set aside the default on November 8, 2022—slightly more than six months after the judgment was entered.  Code of Civil Procedure section 473.5(a) allows the court to vacate a default where the service has not resulted in actual notice in time to allow a defendant to defend.  However, the defendant must show that the failure to defend was not the result of inexcusable neglect.  (Timis v. Barrow (1986) 184 Cal.App.3d 1069.)  If the judgment is void (as opposed to voidable) the court can and should vacate it on request.  Voidness, however, is determined by the judgment roll alone.

Here, service was by substitute service.  The proof of service shows that service was to the correct address but given to a person named “Jeffrey” who was a lab assistant.  Defendants state that “Jeffrey” was not the person in charge of the office and lab assistants do not run the office and have no managerial responsibility.  But defendants misperceive the code.  Substituted service does not have to be made on the CEO, or even a manager.  A relatively lower level employee can be proper where the person seems to have responsibility over the physical space.  Nor does the process server have to guess rightly.  It is enough that the person on whom service is made is in “apparent” charge of the office.  Defendants do not even attempt to explain who “Jeffrey” actually was or how it is that defendants are supposed to know their managerial structure.  The point is that the person who is given the papers ought to be someone where it makes it more likely than not that the person will deliver the papers to the named party.  (Bein v. Brechtel-Jochim Group, Inc. (1992) 6 Cal.App.4th 1387.)  There is no showing that “Jeffrey” was some interloper occupying the office without permission; to the contrary, on this record, there is every reason to believe that “Jeffrey” would have given the papers to the appropriate person.

Nor do defendants ever actually provide evidence that they did not receive the mailed copy of the papers.  There is a reason that the papers are mailed as well as handed to someone, and this is it.  Absent evidence that all of the mailed materials were not delivered by the US Postal Service, there is no evidence of a lack of actual notice.

True, if there was an actual agent for service of process in the official records plaintiff would have to serve (or at least attempt to serve) the agent rather than use the route actually chosen.  But there is no proper agent that defendants have identified.  And Flow Health seems to have made itself its own agent—something that is improper.  In any event, the address listed for the agent is the address at which service was made.  Defendant suggests that plaintiff should have served the Secretary of State.  That might have been an option, but it was not the only one.  And there is certainly no reason to believe that such service would have been more likely successful than what was actually done.

Substitute service was proper here and defendants have failed to make the showing they are required to make.

As to whether the judgment is void, a review of the judgment roll does not so disclose. 

The motion is DENIED.