Judge: Michael E. Whitaker, Case: 19STCV02804, Date: 2023-01-18 Tentative Ruling

Case Number: 19STCV02804    Hearing Date: January 18, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

              Defendants Jose P. Arguelles and Rosa A. Arguelles (collectively, Defendants) move to set aside the Clerk of the Court’s January 26, 2022, entry of default judgment.  Plaintiff Xacil Vazquez (Plaintiff) has not filed an opposition.

ANALYSIS

Per Code of Civil Procedure section 473, subdivision (b), a court may “upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” 

Per Code of Civil Procedure section 473.5, “[w]hen service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default judgment and for leave to defend the action.  The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him of a written notice that the default or default judgment has been entered.”  (Code Civ. Proc., § 473.5, subd. (a).)  “Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.”  (Code Civ. Proc., § 473.5, subd. (c).) 

            Here, on April 4, 2019, Plaintiff filed proofs of service of the summons and complaint on Defendants by substituted service.  The proofs of service state the process server left the documents with “William ‘Doe’ – Occupant” at 11312 Graham Avenue, Los Angeles, CA 90059-1930 on March 30, 2019. (See April 4, 2019 Proofs of Service.)  The proofs of service state that the process server then mailed the documents to Defendants at the 11312 Graham Avenue address on the same date. (See April 4, 2019 Proofs of Service.)

Under Code of Civil Procedure section 415.10 et seq., a defendant may be served either (1) by personal delivery to the defendant (Code Civ. Proc., § 415.10); (2) by substitute service (Code Civ. Proc., § 415.20); (3) by mail coupled with acknowledgement of receipt (Code Civ. Proc., § 415.30); or (4) by publication (Code Civ. Proc., § 415.50). A declaration of service by a registered process server establishes a presumption that the facts stated in the declaration are true. (Evid. Code, § 647; Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750.)

Under Code of Civil Procedure section 415.20, “[i]f a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.” (Code Civ. Proc., § 415.20, subd. (b).) “In order to obtain in personam jurisdiction through any form of constructive service there must be strict compliance with the requisite statutory procedures. (Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1417, quoting Stamps v. Superior Court (1971) 14 Cal.App.3d 108, 110.) 

Defendants advance their own declarations.  Defendants aver that although they own the property at 11312 Graham Avenue, they rent it out and live at a different residence.  (Declaration of Rosa A. Arguelles, ¶¶ 2-3; Declaration of Jose P. Arguelles, ¶¶ 2-3.)  Defendants aver that they resided at 8060 Garfield Avenue, Bell Gardens 90201 at the time of Plaintiff’s alleged substituted service.  (Declaration of Rosa A. Arguelles, ¶ 2, Exhibit 1A; Declaration of Jose P. Arguelles, ¶ 2, Exhibit 1.)  Defendants state that their sole dealings with the 11312 Graham Avenue property was to meet the tenant at the front gate of the property to pick up the rent.  (Declaration of Rosa A. Arguelles, ¶ 5; Declaration of Jose P. Arguelles, ¶ 5.)   

Consequently, the Court finds Defendants have established that Plaintiff failed to effect service of the summons and complaint on Defendants, and that Defendants lacked actual notice of in time to defend the action not caused by his avoidance of service or inexcusable neglect.   

CONCLUSION AND ORDER

            Therefore, the Court grants Defendants’ motion to set aside the Clerk of the Court’s January 26, 2022 entry of default judgment, and orders said default judgment vacated as to Defendants Rosa A. Arguelles and Jose P. Arguelles only. 

            The Court sets a Status Conference, or in the alternative, Trial Setting Conference, on March 15, 2023 at 8:30 A.M. in Department 32.    

            The Clerk of  the Court shall provide notice of the Court’s orders.