Judge: Michael E. Whitaker, Case: 21STCV06591, Date: 2022-08-15 Tentative Ruling

Case Number: 21STCV06591    Hearing Date: August 15, 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 Harshit Kumar moves to set aside the Clerk of the Court’s July 6, 2022, entry of default.  Defendant also moves to quash Plaintiff’s service of the summons and complaint on Defendant by substituted service.  Plaintiff Michael Williams opposes the motion. 

The Court notes that Defendant filed one combined motion to set aside entry of default and quash service of summons.  Instead, Defendant should have filed separate motions as to each form of relief for a total of two motions.  The Court will therefore order Defendant to pay an additional $60 in filing fees. (Gov. Code, § 70617, subd. (a).)

REQUEST FOR JUDICIAL NOTICE

Under Evidence Code section 451, “[j]udicial notice shall be taken of the following: (a) The decisional, constitutional, and public statutory law of this state and of the United States and the provisions of any charter described in Section 3, 4, or 5 of Article XI of the California Constitution…(f) Facts and propositions of generalized knowledge that are so universally known that they cannot reasonably be the subject of dispute. ” (Evid. Code, § 451, subds. (a), (f).)

Under Evidence Code section 452, “[j]udicial notice may be taken of the following matters to the extent that they are not embraced within Section 451: (a) The decisional, constitutional, and statutory law of any state of the United States and the resolutions and private acts of the Congress of the United States and of the Legislature of this state. (b) Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States. (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States (d) Record of (1) any court of this state or (2) any court of record of the United States or of any state of the United States…(g) Facts and propositions that are of such common knowledge within the territorial jurisdictions of the court that they cannot reasonably be the subject of dispute. (h) Facts and propositions that are not reasonably subject to dispute and are capably of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subds. (a)-(d), (g), (h).)

The Court “shall take notice of any matter specified in Section 452 if a party requests it and: (a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and (b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.” (Evid. Code, § 453.)

Here, the Court grants Defendant’s request for judicial notice per Evidence Code section 452, subdivision (d). The Court notes, however, that while the existence of any document in a court file may be judicially noticed, the truth of the matters asserted in such documents is not necessarily subject to judicial notice. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1569.) “A court cannot take judicial notice of the truth of hearsay statements just because they are part of a court record or file.” (Bach v. McNelis (1989) 207 Cal.App.3d 852, 864-865 [emphasis original].)

EVIDENCE

            With respect to Defendant’s objections to the Declaration of Michael Williams, the Court rules as follows:

1. Sustained

2. Sustained

3. Sustained

4. Sustained

5. Sustained

6. Sustained

7. Sustained

8. Overruled

    

ANALYSIS

1. MOTION TO QUASH

Defendant moves to quash Plaintiff’s service of the summons and complaint on Defendant by substituted service under Code of Civil Procedure section 418.10.  The Court finds, however, that is it without jurisdiction to consider the motion to quash.  (See W.A. Rose Co. v. Municipal Court (1959) 16 Cal.App.2d 67, 72 [entry of default deprives the court of jurisdiction to consider any motion other than a motion for relief from default].)

1. MOTION TO SET ASIDE DEFAULT

    

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 15, 2022, 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 “John Doe-Employee/Person in charge” at 14350 Victory Blvd., Van Nuys, CA 91401 on March 11, 2021. (See April 6, 2021 Proof of Service.) The proof of service states that the process server then mailed the documents to Defendant at the 14350 Victory Blvd. on the same date (See April 6, 2021Proof 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.) 

Defendant advances his own declaration.  Defendant avers that he never lived or worked at the 14350 Victory Boulevard address, nor did he authorize anyone at that address to accept service on his behalf. (Declaration of Harshit Kumar, ¶¶ 4, 8.)  Defendant states that it is his understanding that the 7-Eleven store at the address set forth in the proof of service is not operated by the same person who operated the franchised store location where Defendant used to work.  (Declaration of Harshit Kumar, ¶ 4.)  Defendant avers that he first learned of the lawsuit by way of counsel for Defendant upon notice of Plaintiff’s attempt to enter Defendant’s default.  (Declaration of Harshit Kumar, ¶ 5.)  Finally, Defendant states he was not evading service and, if he been served, he would have filed an answer.  (Declaration of Harshit Kumar, ¶¶ 6, 9, Exhibit A.)

In opposition, Plaintiff argues that service of the summons and complaint was properly perfected on Defendant by personal service.  This is incorrect.  As noted above, Plaintiff’s proof of service purports to effect service on Defendant by substituted service – not personal service.  Plaintiff’s opposition further addresses the merits of Defendant’s motion to quash.  But, as also noted above, the Court is without jurisdiction to consider that motion.  Based upon the Court’s rulings on Defendant’s evidentiary objections, the Court finds Plaintiff has not advanced any further competent evidence to establish that the purported service of process on Defendant was proper or other facts showing Defendant actual notice in time to defend the action. 

Consequently, the Court finds Defendant has established that Plaintiff failed to effect service of the summons and complaint on Defendant, and that Defendant 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 Defendant’s motion to set aside the Clerk of the Court’s July 6, 2022 entry of default, and orders said default vacated. 

Finally, the Court orders Defendant to pay an additional $60 in filing fees to the Clerk of the Court on or before August 31, 2022.

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