Judge: Michael E. Whitaker, Case: 20STCV33979, Date: 2022-08-05 Tentative Ruling

Case Number: 20STCV33979    Hearing Date: August 5, 2022    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

              Defendant Darryl Madison moves to set aside the Clerk of the Court’s February 9, 2022, entry of default.  Plaintiff David M. Cohen opposes the motion. 

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 November 23, 2020, Plaintiff filed a proof of service of the summons and complaint on Defendant by substituted service.  The proof of service states the process server left the documents with “‘Jane Doe’ (refused to provide full name) – co-occupant, authorized to accept documents” at 12008 Peony Court Tampa, Florida 33635 on November 4, 2020. (See November 23, 2020 Proof of Service.) The proof of service further states that the process server mailed the documents to Defendant at the 12008 Peony Court address on November 5, 2020. (See November 23, 2020 Proof 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). Service on a limited liability company is effected by serving the person designated as its agent for service of process. (Corps. Code, § 17701.16, subd. (b).) 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.)

            Defendant contends Plaintiff’s service was defective because he did not receive the summons and complaint until May 11, 2022, when his girlfriend received a packet of documents in the mail.  (Declaration of Darryl Madison, ¶ 10.)  Defendant states that the person described as Jane Doe in the November 23, 2020 Proof of Service may have been Defendant’s girlfriend’s babysitter, who may have been too young to receive and understand the documents.  (Declaration of Darryl Madison, ¶ 12.)  According to Defendant, he did not live at the 12008 Peony Court address at the time of purported service, and first learned of this case after his girlfriend received a copy of the summons and cross-complaint against Defendant in this case by mail.  (Declaration of Darryl Madison, ¶¶ 13, 16.) 

            Defendant does not state, however, whether his girlfriend received service of the cross-complaint by mail on May 11, 2022, at the same 12008 Peony Court address.  Nor does Defendant state definitively whether “Jane Doe”  was under 18 years of age at the time of the purported service.  Nor does Defendant state that he does not regularly receive mail at the 12008 Peony Court address.  Finally, the Court notes that the November 23, 2020 proof of service indicates that the process server spoke with Defendant’s “wife” or girlfriend, who stated that Defendant was not home but would be back in a week.  (See November 23, 2020 Proof of Service.)  It would appear, then, that the woman to whom the process server spoke during the attempted service on October 19, 2020, did not dispute that 12008 Peony Court address was either Defendant’s dwelling house or usual place of abode. 

The Court finds Defendant has not advanced sufficient competent evidence to establish that service on Jane Doe on November 4, 2020, at 12008 Peony Court Tampa, Florida 33635  was improper.  Defendant’s evidence does not refute that 12008 Peony Court was either Defendant’s dwelling house, usual place of abode, usual place of business, or usual mailing address at the time of service, or that Jane Doe was not otherwise authorized to receive a copy of the summons and complaint on that date.  Thus, Defendant has failed to rebut the presumption that the facts stated in the process server’s declaration in the November 23, 2020 proof of service are true. (See Floveyor International, Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795 [filing a proof of service that complies with statutory standards creates a rebuttable presumption that service was proper].)

Accordingly, because Defendant has failed to establish that his lack of actual notice in time to defend the action was not caused by Defendant’s avoidance of service or inexcusable neglect, the Court denies the motion to set aside the default.

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