Judge: Monica Bachner, Case: 20STCV21590, Date: 2022-12-06 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by Court Call for all matters.

Case Number: 20STCV21590    Hearing Date: December 6, 2022    Dept: 71

Superior Court of California

County of Los Angeles

 

DEPARTMENT 71

 

TENTATIVE RULING

 

CALIFORNIA GREEN WORLD, LLC,

 

         vs.

 

 

ADAM GREENFIELD.

 Case No.:  20STCV21590

 

 

 

 

 Hearing Date:  December 6, 2022

                        

 

Defendant Adam Greenfield’s, motion to vacate the default entered against him by Plaintiff California Green World, LLC, on the operative complaint is granted.

 

Defendant’s motion to quash service of summons is granted.

 

          Defendant Adam Greenfield (“Greenfield”) (“Defendant”) makes a special appearance to quash service of the summons and to request this Court to vacate the default entered against him by Plaintiff California Green World, LLC (“Green World”) (“Plaintiff”) on the operative complaint (“Complaint”).  (Notice of Motion, pg. 1; C.C.P. §§418.10, 473.)

 

Plaintiff filed the operative Complaint on June 8, 2020.  The Complaint alleges three causes of action for (1) fraud, (2) implied contract, and (3) unjust enrichment.  Plaintiff filed a proof of service with declaration of due diligence on September 28, 2021, to demonstrate that Defendant was served by substituted service at 902 N. Pass Ave., Burbank, CA 91505 on July 20, 2020, at 1:45 p.m. On September 28, 2021, Plaintiff filed a request for entry of default against Defendant, which the clerk entered the same day. Defendant filed his motion to vacate default and quash service of summons on May 20, 2022.  As of the date of this hearing, Plaintiff has not filed an opposition.

 

Legal Standard

 

C.C.P. §473(b)

 

“The 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.  Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”  (C.C.P. §473(b).)  To establish mistake or excusable neglect, a litigant must demonstrate conduct that “might have been the act of a reasonably prudent person under the same circumstances.”  (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206.)

 

“The law favors resolution of cases on their merits, and because it does, any doubts about whether Code of Civil Procedure 473 relief should be granted ‘must be resolved in favor of the party seeking relief from default.’”  (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 685; see Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 134.) 

 

C.C.P. §473(d)

 

“The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”  (C.C.P. §473(d).)

“[U]nder subdivision (d) of Code of Civil Procedure section 473, the court may set aside orders and judgments that are ‘void,’ including orders and judgments void for want of fundamental jurisdiction or personal jurisdiction. [Citation]” (Bae v. T.D. Service Co. of Arizona (2016) 245 Cal.App.4th 89, 97.)

 

C.C.P §418.10

 

“A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion . . . [t]o quash service of summons on the ground of lack of jurisdiction of the court over him or her.  (C.C.P. §418.10(a)(1).)  C.C.P. §418.10(a)(1) “is a limited procedural tool to contest personal jurisdiction over the defendant where the statutory requirements for service of process are not fulfilled.”   (Stancil v. Superior Court (2021) 11 Cal.5th 381, 390.) 

 

Discussion

 

  1. Motion to Vacate Default (C.C.P. §473(d))

     

    Defendant moves for this Court to set aside the default as void.  (Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1122; Aldrich v. San Fernando Lumber Co. (1985) 170 Cal.App.3d 725, 736.)  Defendant argues Plaintiff filed a proof of service demonstrating Defendant was served by substituted service on July 20, 2020, at 902 N. Pass Ave, Burbank, CA 91505, with proof of service completed by Justin Paul Rodriguez and not a registered process server, shifting the burden of producing evidence onto Plaintiff, pursuant to Evidence Code §647.  (Motion, pg. 3.)  Defendant declares he was never personally served, notified of service, or received a copy of the summons and complaint by any other means, including mail.  (Decl. of Greenfield ¶¶8, 9.)  Defendant declares the home address in the due diligence declaration is inaccurate because he does not reside at the purported address and the proof of service on Elia Gonzalez incorrectly identifies Gonzalez as Defendant’s wife and residing at the address despite the fact Gonzalez moved to Mexico around 2017.  (Decl. of Greenfield ¶¶6, 7, 8.)  Defendant further declares he filed this motion to vacate within six months of learning the existence of the lawsuit.  (Decl. of Greenfield ¶¶3, 4.)

     

              The Court has no authority to render judgment based on substituted service of the summons when the statutory requirements for service have not been followed.  (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 412.)  Defendant was not properly served by substituted service at his residence, and he never received a copy of the complaint via mail at his residence.  (Id.; Decl. of Greenfield ¶¶6, 8, 9.)  In the interests of fairness and justice, this Court grants Defendant’s motion to set aside default that was entered. 

     

  2. Motion to Quash Service of Summons

 

Defendant moves to quash service of summons pursuant to C.C.P. §418.10 on the basis that service was rendered on a person not in charge, the mailing address on the summons is defective, and there was a mistake in not informing Defendant to look for potential lawsuits.  (Motion, pg. 6.)  Defendant further moves for the court to quash Plaintiff’s writ of execution and resulting levy if one is filed while Defendant’s motion is pending.  (Evans v. Superior Court (1942) 20 Cal.2d 186, 188.)  Plaintiff failed to properly serve Defendant with a summons, therefore, this Court lacks jurisdiction over Defendant.  (C.C.P. §418.10(a)(1).) However, no writ of execution or levy has been filed in the instant case. 

 

Based on the foregoing, Defendant’s motion to quash service of summons is granted.

 

 

Dated:  December _____, 2022

                                                                                                                       

Hon. Monica Bachner

Judge of the Superior Court