Judge: Michael Shultz, Case: 22CMCV00576, Date: 2023-03-09 Tentative Ruling
Case Number: 22CMCV00576 Hearing Date: March 9, 2023 Dept: A
22CMCV00576 Pure Energy,
Inc. v. Linda Ruttlen
[TENTATIVE] ORDER
I.
BACKGROUND
The complaint alleges that Defendant
contracted with Plaintiff to remodel Defendant’s home pursuant to a written
agreement. Defendant unilaterally terminated the contract by preventing
Plaintiff from accessing the property and failing to pay for the work. Plaintiff
alleges claims for breach of contract, fraud, declaratory relief, and common
counts.
II.
ARGUMENTS
Defendant
requests an order to vacate the Clerk’s entry of default on January 17, 2023. Defendant
avers that the Court lacks jurisdiction over Defendant since Defendant was not
properly served in a manner that resulted in actual notice. According to Defendant,
cameras show that the papers were left outside in the rain. Equitable
principles require that the default be set aside.
Plaintiff argues that the
declaration of the registered process server establishes that Defendant was
properly served by substituted service after the process server attempted
personal service three times. While Plaintiff offered to stipulate to set aside
the default entry, the letter was
returned as undeliverable. If the Court grants relief, the Court should order
Defendant to pay costs in connection service of process.
A reply brief has not been filed.
III.
LEGAL
STANDARDS
The Court can set
aside the default judgment if it is void such as where the summons and
complaint were not properly served. (Code
Civ. Proc., § 473(d)). Without proper service, the Court lacks
jurisdiction. The return of a registered process server, however, establishes a
“presumption of proper service affecting the burden of producing evidence of
the facts stated in the return.”(Evid.
Code, § 647).
Plaintiff bears the burden of proving that service was properly
accomplished “by a preponderance of the evidence that all necessary
jurisdictional criteria are met [citations omitted]. This burden must be met by
competent evidence in affidavits and authenticated documentary evidence. An
unverified complaint may not be considered as an affidavit supplying necessary
facts.” (Ziller
Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222,
1232).
If a summons and complaint cannot be
personally served with reasonable diligence, it 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, … and by thereafter mailing a copy of the summons and of 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 (b)).
The Court can also set aside default
if service of summons has not resulted in actual notice to a party in time to
defend the action if the Court finds that lack of notice was not caused by
Defendant’s "avoidance of service or inexcusable neglect.” (Code
Civ. Proc., § 473.5).
IV. DISCUSSION
Plaintiff is entitled to the
presumption of proper service based on the declaration of Plaintiff’s process
server, James Wood, who avers that Plaintiff effected substituted service on
Defendant after diligent attempts at personal service were unsuccessful. (Opp.
Ex. A). Defendant’s declaration does not overcome the
presumption. Defendant states she was not personally served, which is not in
dispute. (Decl.
of Rutten, ¶ 6). Defendant states she “review[ed] her
cameras on December 10, 2022,” and saw paperwork on the ground. (Decl
of Rutten, ¶ 6.) The proof of service reflects that Mr. Wood accomplished service
on December 2, 2022, by service on another tenant, which Defendant has not
addressed. (Opp.
Ex. A).
Defendant is not
entitled to relief under Civil Procedure, section 473.5. Her declaration does not address whether she
was willfully avoiding service or her neglect, excusable or otherwise.
Defendant also argues that she is
entitled to equitable relief based on extrinsic mistake or fraud. Under this
principle, relief may be granted when "a party is denied a fair adversary
hearing because he has been ‘deliberately kept in ignorance of the action or
proceeding, or in some other way fraudulently prevented from presenting
his claim or defense.’ [citation omitted]. It occurs when ‘the unsuccessful
party has been prevented from exhibiting fully his case, by fraud or deception
practiced on him by his opponent, as by keeping him away from court, a false
promise of a compromise; or where the defendant never had knowledge of the
suit, being kept in ignorance by the acts of the plaintiff.” ’ [Citation.] In
those situations, there has not been ‘a real contest in the trial or hearing of
the case,’ and the judgment may be set aside to open the case for a fair
hearing." (Luxury
Asset Lending, LLC v. Philadelphia Television Network, Inc. (2020)
56 Cal.App.5th 894, 910–911).
The evidence establishes that
Plaintiff properly served Defendant with the summons and complaint on December
2, 2022. Defendant does not offer any excuse for not filing her answer earlier.
V. CONCLUSION
Based
on the foregoing, Defendant’s motion is DENIED.