Judge Matthew C. Braner, Case Number: 37-2023-00019225-CU-BC-CTL, Date: 2024-06-28 Tentative Ruling

Judge: Matthew C. Braner, Case: 37-2023-00019225-CU-BC-CTL, Date: 2024-06-28 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 27, 2024

06/28/2024 09:00:00 AM C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited Breach of Contract/Warranty Motion Hearing (Civil) 37-2023-00019225-CU-BC-CTL CRUMRINE VS THE MUSTANG SHOP OF SAN DIEGO INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendants The Mustang Shop of San Diego ('Mustang Shop') and Peter Rogers's motion for relief from judgment is DENIED.

Defendants move to vacate the judgment by default entered on February 14, 2024, (ROA #50) and set aside the default entered against Defendants on September 11, 2023 (ROA #12), under Code of Civil Procedure sections 425.115 and 473. Defendants contend Plaintiff failed to effectuate proper service of a claim for punitive damages prior to entry of default by using substitute service without first exercising reasonable diligence to personally serve the claim. (Code Civ. Proc., � 425.115, subds. (b), (f), (g); Code Civ. Proc., � 415.20, subd. (b).) Defendants further contend the entry of default was the result of their mistake, inadvertence, or excusable neglect, as Defendant Rogers does not recall being personally served with the complaint. (Code Civ. Proc., � 473, subd. (b); ROA #73, Rogers Dec., � 14.) The court rejects these arguments.

First, Defendants have failed to make a sufficient showing the entry of default was the result of mistake, inadvertence, or excusable neglect. 'The mislaying of process, forgetfulness, or intentional disregard of service are not 'mistake, inadvertence, surprise or excusable neglect' as those terms are used in section 473 of the Code of Civil Procedure, and they do not require a court to set aside a default.' (Price v. Hibbs (1964) 225 Cal.App.2d 209, 217.) Plaintiff has presented the proof of service demonstrating both he and his business, Defendant Mustang Shop, were personally served with the complaint in this case on May 8, 2023, at the business address for Defendant Mustang Shop. (ROA #'s 8-9; ROA #97, Stephen Dec., Ex. 3 [statement of information for Defendant Mustang Shop showing its principal address is 1640 Hoover Ave., National City, CA 91950].) These proofs of service outweigh Defendant Rogers's forgetfulness. They also outweigh the disingenuous argument regarding Plaintiff's former counsel in a prior related but still separate case. Most importantly, Plaintiff's former counsel was not still in communication with Defendants following service of the complaint. Rather, it was Defendant Rogers who contacted attorney Soleimanpour, and within hours he was informed by attorney Soleimanpour he no longer represents Plaintiff 'on any pending matters.' Defendants have otherwise failed to offer satisfactory grounds to set aside the default. Accordingly, the request is denied.

Second, Defendants have also failed to show the notice of claim for punitive damages served on Defendants was improper. Most obviously, substitute service on Defendant Mustang Shop was governed by subdivision (a) of Code of Civil Procedure section 415.20, which does not contain the reasonable diligence requirement stated in subdivision (b). As to service on Defendant Rogers, the court Calendar No.: Event ID: TENTATIVE RULINGS

3098678 21 CASE NUMBER: CASE TITLE: CRUMRINE VS THE MUSTANG SHOP OF SAN DIEGO INC [IMAGED] 37-2023-00019225-CU-BC-CTL is not persuaded Plaintiff could, with reasonable diligence, have personally served Defendant Rogers.

By his own admission, Defendant Rogers does not reside in San Diego and only visits San Diego and his business 'as needed.' (ROA #73, Rogers Dec., � 13.) Coupled with the fact that Defendant Rogers is the sole owner of Defendant Mustang Shop and had previously received service of the complaint on its behalf, the court concludes substitute service on both Defendants was authorized and proper. (See Bein v. Brechtel-Jochim Group, Inc. (1992) 6 Cal.App.4th 1387, 1392 ['The Supreme Court's admonition to construe the process statutes liberally extends to substituted service as well as to personal service.'].) The court also rejects the unsupported assertion that the registered process server, Jesse Stribling, should not have left the claim of punitive damages with Mr. De La Taca because he was 'was not an employee of The Mustang Shop of San Diego, Inc. and was only present in the premises during certain times.' (ROA #73, Rogers Dec., � 16.) The only requirements for substitute service are that the documents are left with 'the person who is apparently in charge' of the business office, and that after leaving the documents with this person, they are then mailed to the business office 'by first-class mail, postage prepaid;' there is no requirement the person 'apparently in change' must be an employee.

(Code Civ. Proc., � 415.20, subds. (a), (b).) Defendants do not dispute Mr. De La Taca had the right to be present at the business at the time service was attempted, nor do they dispute the reasonable inference necessarily drawn by Mr. Stribling that Mr. De La Taca was present as a representative of Defendants' interests, and would therefore inform Defendants of the service and deliver the documents to them. (See, e.g., Bein v. Brechtel-Jochim Group, Inc., supra, 6 Cal.App.4th at pp. 1393-94 ['Service must be made upon a person whose 'relationship with the person to be served makes it more likely than not that they will deliver process to the named party.''].) Accordingly, Defendants' motion is denied.

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