Judge: Michael Shultz, Case: 20STCV37664, Date: 2024-12-10 Tentative Ruling
DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call.
Case Number: 20STCV37664 Hearing Date: December 10, 2024 Dept: 40
[TENTATIVE]
ORDER GRANTING MOTION IN PART BY SPECIALLY APPEARING DEFENDANT, NATIONWIDE
PALLETS, INC., TO (1) QUASH SERVICE OF SUMMONS, (2) SET ASIDE DEFAULT JUDGMENT,
(3) RECALL AND QUASH WRIT OF EXECUTION, AND (4) DISMISS ACTION FOR FAILURE TO
SERVE
I.
BACKGROUND
The second amended complaint (“SAC”)
filed on June 24, 2022, alleges that Defendants failed to pay rent for
commercial real property and improperly assigned their rights under the lease
to third parties. (Def. RJN, Ex. E.) Plaintiff
alleges claims for breach of contract and related causes of action. (Id.)
Plaintiff served Defendant, Nationwide Pallets, Inc. (“Nationwide”) with the
SAC on November 22, 2023, by substituted service on Jamie Ramirez, a forklift
driver, located at 2206 Damon Street in Los Angeles, which the court rejected.(Def.
RJN, Ex. G.) Plaintiff filed a second proof of substituted service of the SAC
on Nationwide by serving a receptionist on January 31, 2024 located at the
Damon Street address. (Def. RJN, Ex. H.)
The clerk entered default against
Nationwide and Jose J. Reyes, an individual (“Reyes”) , on March 14, 2024, and
entered judgment against Nationwide only on June 12, 2024. (Def. RJN, Ex. J.) The
clerk issued a writ of execution against the judgment debtor, identified as
Nationwide, on July 26, 2024. (Def. RJN, Ex. K.)
II.
ARGUMENTS
Nationwide seeks an order vacating
the default entry/judgment, and to recall the writ of execution on grounds Plaintiff
did not property serve Nationwide. Plaintiff did not serve Defendant’s agent
for service of process, identified in Nationwide’s Statement of Information as
William Greff, located at 1649 Colorado Boulevard in Los Angeles. Plaintiff
claims to have served Mr. Greff by substituted service on a forklift driver and
subsequently on a receptionist when the first proof of service was rejected.
The proof of service on the receptionist does not describe the documents
served, nor has Mr. Greff received documents concerning this case. Accordingly,
all judgments and writs that follow are void.
In opposition, Plaintiff argues that
the service on Nationwide’s receptionist at Nationwide’s place of business was
proper. Mr. Greff is one of the people that can be served with process, but not
the only person. While Mr. Greff’s office is not the same as either of
Nationwide’s business addresses, service was properly effective at Nationwide’s
Damon Street address by substituted service on the receptionist, a person
apparently in charge. At minimum, Plaintiff substantially complied with the
requirements of statute.
In reply, Nationwide argues that
service was not properly accomplished and should be quashed.
III.
DISCUSSION
Defendant
can move to quash service of summons based on the court’s lack of jurisdiction
over Defendant. (Code Civ. Proc., § 418.10, subd. (a)(1).) Plaintiff bears the
burden of proving by a preponderance of evidence that "all necessary
jurisdictional criteria are met." (Ziller
Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1233; Dill v.
Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439-1440.)
Nationwide
challenges the substitute service purportedly effected and the default entry, judgment,
and the issued writ all of which occurred thereafter and are void for lack of
personal jurisdiction over Nationwide. A party may move to set aside a void
judgment for lack of jurisdiction. (Falahati v. Kondo (2005) 127 Cal.App.4th 823, 830; Code Civ. Proc., § 473 subd. (d), [The court “may, on motion of either
party after notice to the other party, set aside any void judgment or
order."].)
A
default judgment entered against a defendant who was not served in the manner
prescribed by statute is void. (Dill at 1444; “Under section 473, subdivision (d),
the court may set aside a default judgment which is valid on its face, but
void, as a matter of law, due to improper service.”) Compliance with statutory procedures for
service of process is “essential” to establish personal jurisdiction. (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.)
Service
on a corporation may be accomplished by delivering a copy of the summons and
complaint on the designated agent for service of process or an officer of the
corporation or its managing agent. (Code Civ. Proc., § 416.10.) In lieu of personal delivery on the
person to be served under section 416.10, substituted service may be made at
the person’s office or usual mailing address by leaving the summons and
complaint with the person apparently in charge, and by mailing the same
documents to the same address (Code Civ. Proc., § 415.20 subd.(a).)
“Strict
and exact compliance” with requirements for service of process are no longer
required. (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 408.) The service statutes are now liberally construed, and “substantial compliance” will suffice. (Id.)
Since the relevant statutes identify the
persons to be served on behalf of a corporation, serving an employee of the
corporation is not substantial compliance. (Dill at 1439.) Plaintiff’s
reliance on Carol Gilbert, Inc. v. Haller (2009) 179 Cal.App.4th 852 is misplaced. Gilbert involved service on an individual. Service
on a corporation requires service on those persons specifically designated as
authorized to receive service on behalf of a corporation. (Dill at 1439.)
Plaintiff also cites Trackman v. Kenney (2010) 187 Cal.App.4th 175, which is also inapposite as it
involved service on an individual identified as “John Doe.”(Id. at 182.)
Plaintiff
argues that Mr. Greff’s name was on the proof of service but acknowledges that
the documents were not left at Mr. Greff’s office. (Opp. 7:5-7.) Service was
purportedly accomplished at 2206 Damon St. (Def. RJN, Ex. G-1.) Mr. Greff’s
business address as reflected in Nationwide’s Statement of Information is 1649
Colorado Boulevard in Los Angeles. (Jose Reyes decl., ¶ 7, Ex. L.) Mr. Greff
does not operate from Nationwide’s location nor does he receive mail at
Nationwide’s business address. (Id. at ¶8.) Moreover, the Statement of Information
identifies Nationwide’s business address as 2301 Porter Street, Los Angeles and
not Damon Street. (Id. at Ex. L.)
Defendant
requests an order recalling the writ and ordering Plaintiff to return the funds
obtained pursuant to the void writ. The court has the power "and it is the
trial court's duty, to vacate or recall a writ of execution which has been
improvidently issued." (Jones v. World Life Research Institute (1976) 60 Cal.App.3d 836, 840.) The judgment debtor is also entitled
to recover all things taken under a void judgment. (Stegge
v. Wilkerson (1961) 189 Cal.App.2d 1, 5 [“It is well settled in
California that when a judgment is reversed on appeal the appellant is entitled
to restitution of all things taken from him under the judgment. After reversal,
the respondent stands in the position of a trustee of appellant of the property
obtained under the judgment. The same rule should apply where a judgment has
been vacated by a trial court. A judgment, when vacated, cannot be effective
for any purpose.’”].)
While
the court recalls the writ at issue, the court’s file does not reflect that the
writ was returned or that funds were obtained pursuant to the now-voided writ. Defendant’s
evidence reflects that Defendant’s banker received notice of levy under writ of
execution. (Jose Reyes Decl., Ex. M.)
Defendant’s
request for dismissal of the action for failure to serve within three years of
commencing the action is DENIED. Dismissal is mandatory were service is not
accomplished within three years of filing the action. (Code Civ. Proc., § 583.250.)
This
action was filed on October 1, 2020. The court’s file reflects that Plaintiff
accomplished service on the original complaint on October 27, 2020. That proof
of service is not at issue in this motion. Accordingly, that request is DENIED.
IV.
CONCLUSION
As
service was not properly effected on Nationwide, Defendant’s motion is GRANTED
IN PART. The court quashes service of summons and vacates the default entered against
Nationwide on March 14, 2024, the judgment entered against Nationwide on June
12, 2024, and the writ of execution, which was based on a void judgment, filed
July 26, 2024. Defendant’s request to dismiss the action is DENIED.