Judge Michelle C. Kim, Case Number: 19STCV31987, Date: 2023-05-22 Tentative Ruling

Plaintiff State Farm Mutual Automobile Insurance Company (“Plaintiff”) filed this action against Defendant Brian Bajah (“Defendant”) for subrogation to recover damages paid to its insured relating to a motor vehicle accident involving Defendant.

On June 16, 2020, Plaintiff filed an Application for Publication seeking an order directing service of the summons and complaint on Defendant by publication in the Los Angeles Independent newspaper. An Order for Publication was signed and filed by the Court on June 19, 2020, ordering that service on Defendant was to be done by publication in the Los Angeles Independent. On August 28, 2020, Plaintiff filed Proof of Publication showing the summons was published in the Los Angeles Independent on July 16, 23, 30 and August 6, 2020. Thereafter, Defendant’s default was entered on December 23, 2020, and a default judgment was entered against Defendant in the amount of $35,253.07 on June 21, 2021.

On November 8, 2022, Defendant filed the instant Motion to Quash Service of Summons and Complaint; Set Aside Default and Default Judgment. Plaintiff opposed, and Defendant replied.

Defendant argued for the first time in reply that the service of summons did not result in actual notice to Defendant, so the default and default judgment should be set aside pursuant to CCP § 473.5(a). Defendant asserts that he only became aware of this action after the default and default judgment were entered against him. Given Defendant raised for the first time in reply arguments concerning CCP § 473.5(a), the Court continued the motion to allow Plaintiff to respond to Defendant’s contentions regarding this provision. (Min. Order, April 12, 2023.)

On May 5, Plaintiff filed a supplemental opposition. On May 11, Defendant filed a supplemental reply.

“(a) When 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 or 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 or her of a written notice that the default or default judgment has been entered.

(b) A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.

(c) 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.”

Plaintiff advances the declaration of Christopher D. Anderson (“Anderson”), attorney for Plaintiff. Anderson attests that American Automobile Association (“AAA”) first contacted Plaintiff’s counsel on July 31, 2019, requesting the status of Plaintiff’s claim. (Supp. Opp. Decl. Anderson ¶ 8.) From August 23, 2019, to April 5, 2021, Plaintiff’s counsel and AAA discussed settling Plaintiff’s claim. (Id. at ¶¶ 8 – 19.) On October 14, 2019, Plaintiff’s counsel faxed a copy of the complaint to AAA, and on January 13, 2021, Plaintiff’s counsel emailed a copy of the complaint in response to AAA’s request. (Id. at ¶¶ 10, 17.) On April 5, 2021, AAA called Plaintiff’s counsel advising that Defendant advised AAA that he is unable to contribute to settlement. (Id. at ¶ 19.)

Based on Anderson’s testimony, including regarding the April 5, 2021, telephone call, Plaintiff had actual notice of the lawsuit. Contrary to what Defendant argues in his supplemental reply, Anderson’s testimony is admissible because he has established the necessary foundation for his law office’s case file, his personal knowledge of the file and its contents. Further, the April 5, 2021, telephone call is an authorized admission, a hearsay exception. (Evid. Code, § 1222.)

Thus, the record shows that Plaintiff had actual notice of Defendant's lawsuit in time to file an answer or other response to the complaint and avoid the entry of a default. Even if he lacked actual notice of the action in time to defend, Plaintiff bore the burden to show that his lack of actual notice was not caused by his avoidance of service or inexcusable neglect (CCP § 473.5 (b)), but his declaration did not state any supporting facts. (Decl. Bahaj ¶¶ 2-11.) It only stated that “he has not avoided service.” (Id. at ¶ 7.) He does not offer evidence regarding inexcusable neglect. (Id. at ¶¶ 2-11.) Plaintiff’s conclusory declaration does not satisfy his burden. (Rios v. Singh (2021) 65 Cal.App.5th 871, 885.) Because he did not satisfy the requirements for relief under section 473.5, the Court denies him relief from the default judgment.

In his supplemental reply, Defendant also argues that the newspaper by which Plaintiff served him, the Los Angeles Independent, does not circulate in Hawthorne, California while Plaintiff attests Hawthorne is his last known city. (Decl. Kalpakian ¶ 2, Ex. E.)

The requirement of publication in a newspaper “most likely to give actual notice” (CCP § 415.50(b)) is not met if plaintiff knows defendant is not in the locale where the newspaper is published. (Olvera v. Olvera (1991) 232 Cal.App.3d 32, 43.) Here, however, because Plaintiff tried to serve Defendant at various addresses from September 2019 to February 2020 before serving him by publication, Plaintiff did not know of Defendant’s locale. (Opp. Decl. Anderson ¶¶ 14-16.) Further, Plaintiff selected the Los Angeles Independent because it circulates in the same county of Plaintiff’s last known address in Hawthorne, California. (Decl. Kalpakian ¶ 2, Ex. E.)

Additionally, although the statute governing service of summons by publication provides that summons must be published in a designated newspaper that is most likely to give actual notice to defendant, it does not require that defendant see the publication. (Rios v. Singh (2021) 65 Cal.App.5th 871, 882.) For purposes of due process, actual receipt or actual knowledge is not required; notice by means reasonably calculated to provide actual notice is sufficient. (In re Emily R. (2000) 80 Cal.App.4th 1344, 1353.)

Further, Plaintiff exercised the diligence necessary to justify resort to service by publication. (Donel, Inc. v. Badalian (1978) 87 Cal.App.3d 327, 333.) From June 2019 to December 2019, Plaintiff inquired about defendant’s whereabouts with the U.S. Postal Service, presenting different street addresses. (Opp. Decl. Anderson ¶¶ 9-12.) Plaintiff also utilized skip tracing resources. (Id. at ¶ 13.) After the postal service corroborated some of the addresses and Plaintiff received confirmation from skip tracing resources regarding certain addresses, Plaintiff attempted service multiple times at those addresses from September 2019 to February 2020. (Id. at ¶¶ 14-16.) Finally, Plaintiff served Defendant by publication. (Id. at ¶ 9.)

Hon. Michelle C. Kim

Judge of the Superior Court