Judge: Michael Shultz, Case: 23CMCV00712, Date: 2024-08-22 Tentative Ruling

INSTRUCTIONS: If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must:

1. Contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling.

2. No later than 4:00 p.m. on the court day before the hearing, call the Courtroom (310-761-4302) advising that all parties will submit on the tentative ruling and waive hearing; and

3. Serve notice of the Court's ruling on all parties entitled to receive service.

If this procedure is followed, when the case is called the Court will enter its ruling on the motion in accordance with its tentative ruling. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing. If there is neither a telephone call nor an appearance, then the matter may either be taken off calendar or ruled on. 

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Case Number: 23CMCV00712    Hearing Date: August 22, 2024    Dept: A

23CMCV00712 Monica Alcantara, et al. v. Juana Guevara

Thursday, August 22, 2024, at 8:30 a.m.

[TENTATIVE] ORDER DENYING MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT AND TO QUASH SERVCIE OF SUMMONS  

I.        BACKGROUND

       Plaintiffs allege they suffered injury as a result of a motor vehicle accident allegedly caused by Defendants. The clerk entered default against the following Defendants:

Emily Guevara (Doe 21)           April 17, 2024

Juana Inez Ramirez (Doe 1)     June 25, 2024

Juana Guevara                             July 12, 2024

II.      ARGUMENTS

       Defendant, Emily Guevara (“Defendant”) argues that entry of default should be set aside because she was not involved in the alleged accident. She is not related to Juana Guevara. Defendant was not properly served with the summons and complaint by substituted service as the proof of service asserts. Defendant found the documents in her mailbox and did not receive actual notice of the action in time to defend.

       Plaintiffs’ counsel argues that Defendant filed three different motions. Only the motion with a hearing date of August 22, 2024, gave Plaintiffs timely notice. Service on Defendant was properly accomplished at an address she provided to the State of California which is required by law of licensed real estate brokers and salespersons. Defendant’s declaration is insufficient to support the relief requested.

       Defendant did not file a reply brief by August 15, 2024, (five court days before the hearing.) (Code Civ. Proc., § 1005 sub. (b).)

III.    LEGAL STANDARDS

Defendant can move to quash service of summons based on the court’s lack of jurisdiction over him or her. (Code Civ. Proc., § 418.10, subd. (a)(1).) Plaintiffs bear 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.) Without proper service over a defendant, the court lacks personal jurisdiction. (Brown v. Williams (2000) 78 Cal.App.4th 182, 186, fn. 4.) Therefore, an ensuing default entry and judgment are void. (Id.)

       The return of a registered process server establishes a presumption, affecting the burden of proof, of the facts stated in the declaration. (Evid. Code, § 647.)

IV.    DISCUSSION

       While Plaintiffs contend several copies of the motion were served, the court’s file reflects that Defendant filed one motion on July 16, 2024, which the court has considered.

       The proof of service of the summons and complaint filed with the Court reflects that substituted service was made by a registered process server on Defendant at Real Estate Excellence, 5207 Rosemead Boulevard, Pico Rivera, CA 90660, where the documents were handed to the front desk receptionist. (P.O.S. 4/16/24.) If a defendant cannot be personally served with the summons and complaint, service may be accomplished at Defendant’s "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.” (Code Civ. Proc., § 415.20 subd. (b).)

       Here, the process server diligently attempted personal service on three occasions at the office address without success as the “subject was not available.” (P.O.S. 4/16/24, pp 3; American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389 ["two or three attempts to personally serve a defendant at a proper place ordinarily qualifies as ‘reasonable diligence.’"].) Service was completed upon mailing the documents to the same address. (P.O.S., Id.)

       Plaintiffs assert they obtained Defendant’s business address from the Real Estate Commissioner, (“Commissioner”) as a licensed real estate broker and salesperson are required to provide a current office or mailing address, a current telephone number, and current email address as well as any changes thereto. (Bus. & Prof. Code, § 10162 subd. (c)(1) and (2).) Plaintiffs served Defendant at the address given to the Commissioner, which was 5207 Rosemead Boulevard in Pico Rivera. (Neil Howard Decl., Ex. 5.)

       Defendant admits she is a licensed realtor but does not work at the Pico Rivera address. (Emily Guevara decl., ¶ 5.) The statute requires a broker or licensee to provide changes in contact information. (Bus. & Prof. Code § 10162 (subd. (c)(2).) Defendant, who did not file a reply brief, has not explained why changes were not made to her contact information.

       The same document filed with the Commissioner reflects that Defendant’s mailing address was 1409 E. Imperial Highway, Apartment 118 in Los Angeles. (Id.) Defendant confirms this is her primary residence, that she works from home, and is home most of the day. (Emily Guevara decl., ¶ 6.) Plaintiffs also attempted personal service on four occasions by a registered process server at that location without success as no one answered the door, and the person who did subsequently answer the door denied that Defendant lived there. (Id., Ex. 2.) Defendant asserts that her residence is 1409 E. Imperial Highway, Apartment 118. (Mot., Decl., Ex. A, pp. 11.).)

       The rule for resolving conflicts in affidavits is the same as that governing oral testimony, and it is primarily for the lower court to determine the credibility of the affiants. (Garcia v. Gallo (1959) 176 Cal.App.2d 658, 661.) Defendant has not overcome the presumption that service was properly made at her place of business by substituted service. There are no grounds to support quashing service of summons.

       Defendant also argues that default was the result of mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., § 473.) However, her declaration does not assert any facts of her conduct constituting mistake, inadvertence, surprise, or excusable neglect.

       Defendant argues that she is entitled to relief under Code Civ. Proc., § 473.5, which permits setting aside a default when service of a summons has not resulted in actual notice to a party in time to defend. A defendant seeking to set aside a default or default judgment under section 473.5 must show, by affidavit, 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. (Code Civ. Proc., § 473.5; Rios v. Singh (2021) 65 Cal.App.5th 871, 885.) Defendant is required to demonstrate by affidavit that lack of actual notice in time to defend the action “was not caused by his or her avoidance of service or inexcusable neglect.” (Code Civ. Proc., § 473.5 subd. (b).)  

       Defendant avers that “she was not evading service.” (Emily Guevara decl., ¶ 7.) First, the evidence does not demonstrate that Defendant lacked notice of the action as she was properly served at her place of business at an address reflected in the Commissioner’s records. Additionally, Defendant provided an email confirming that documents served at Defendant’s business address were “scanned over to you out of courtesy by the front desk.” (Mot., Ex. C “Message from Real Estate Office.”) Defendant’s conclusory declaration does not satisfy her burden that lack of notice was not due to avoidance of service. (Rios v. Singh (2021) 65 Cal.App.5th 871, 885.)

       Defendant has not addressed the attempted service at her home or why someone at her address denied that she lived there when Defendant’s declaration confirms that she does live at that address. Nor has Defendant addressed why changes to her business contact information were not sent to the Commissioner as required by statute, if, as she now declares, she no longer works there.

V.      CONCLUSION

       Defendant has not met her burden of demonstrating that she is entitled to vacate entry of default on any of the grounds asserted. Accordingly, the motion is DENIED.