Judge: Peter A. Hernandez, Case: 21PSCV01012, Date: 2023-08-16 Tentative Ruling

Case Number: 21PSCV01012    Hearing Date: August 16, 2023    Dept: K

Plaintiff Stanley Wetch’s Motion to Set Aside Default Judgment is DENIED.

Background   

Plaintiff Worldwide Produce (“Plaintiff”) alleges as follows:

On or about August 3, 2020, Plaintiff and Defendants SSRE Holdings LLC dba Signature Fresh (“SSRE Holdings”) and Stanley Wetch (“Wetch”) entered into a written agreement, wherein SSRE Holdings and Wetch agreed to pay Plaintiff all amounts due as invoiced. SSRE Holdings and Wetch have failed to pay all amounts due.

On December 3, 2021, Plaintiff filed a complaint, asserting causes of action against SSRE Holdings, Wetch and Does 1-10 for:

1.                  Breach of Contract

2.                  Open Book Account

3.                  Account Stated

4.                  Reasonable Value

5.                  Breach of Personal Guarantee

On April 15, 2022, SSRE Holding’s and Wetch’s defaults were entered.

On April 21, 2022, default judgment was filed.

Legal Standard

“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.” (Code Civ. Proc., § 473, subd. (d).)

Discussion

Wetch moves the court for an order vacating the default judgment entered against him on the basis of “lack of service.”[1]

On April 15, 2022, Plaintiff filed a proof of service which reflects that on December 14, 2021, the summons and complaint, inter alia, were served by substitute service upon Wetch at 18901 Railroad St., City of Industry, CA 91784 (“Railroad Avenue Location”). (Wetch Decl., ¶ 3, Exh. A.) The documents were purportedly served upon “Luis ‘Doe’ (Declined Full Name), Person in Charge.” (Id.) A copy of the summons and complaint was thereafter mailed that day to Wetch at the Railroad Avenue Location. (Id.) Plaintiff also filed a “Declaration of Due Diligence” by registered process server J. Martinez (“Martinez”), which reflected that he had attempted to serve Wetch with the summons and complaint at the Railroad Avenue Location as follows:

            12/10/21 4:53pm BUSINESS LOCKED/CLOSED

12/13/21 5:06pm BUSINESS LOCKED/CLOSED

12/14/21 8:50am SUBSTITUTED SERVICE. RECIPIENT INSTRUCTED

TO DELIVER DOCUMENTS TO DEFENDANT

Substitute service here is governed by Code of Civil Procedure § 415.20, subdivision (b), which reads as follows:

            If a copy of the summons and complaint cannot with reasonable diligence

be personally delivered to the person to be served, as specified in Section

416.60, 416.70, 416.80, or 416.90, a summons 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, or usual mailing address other than a United States Postal Service post

office box, at least 18 years of age, who shall be informed of the contents thereof,

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.

Wetch complains that the above substitute service was improper, because Martinez only attempted to serve Wetch on two occasions without success before effectuating substitute service and because Wetch was “forcibly ousted” from possession and control of the business in November 2020[2] by Plaintiff’s employee, Derek Zirkle (“Zirkle”) and Alex Meseonznik (“Meseonznik”), the owner of Whitter Enterprises, LLC (“Whitter”), and that he has not returned to the business at the Railroad Street Location since early December 2020. (Wetch Decl., ¶ 9.) He attests that on January 4, 2021, Zirkle and Meseonznik gave over possession of the Railroad Street Location to Real Good Foods and that on March 16, 2021, Plaintiff’s furniture, fixtures and equipment at the Railroad Street Location were sold by the secured lender, PMK Financial Services, to Real Good Foods. (Id., ¶ 10).

He further attests that, to the best of his knowledge, SSRE has not conducted business at the Railroad Street Location since the assets were sold and that he has not been present or done business as SSRE or otherwise at the Railroad Street Location since December 2020. (Id.) He attests that he has not received any mail directed to the Railroad Street Location since December 2020, that nothing mailed to that address or delivered to anyone at that address had been forwarded or otherwise delivered to him since December 2020, that he did not receive a copy of the summons and complaint at any time, and that he first learned of this lawsuit on or about May 21, 2022, when he received the Order to Appear and be Examined. (Id., ¶¶ 14 and 15.)

Plaintiff’s counsel Alan Brodkin (“Brodkin”) has filed a declaration attaching a copy of an undated California Secretary of State Corporate Filing for SSRE which lists the Railroad Street Location as SSRE’s business address. (Brodkin Decl., ¶ 4, Exh. A.) More significantly, however, Brodkin has also attached a California Secretary of State Statement of Information for SSRE filed February 19, 2021 (i.e., after Wetch was purportedly “forcibly” ousted in November 2020) submitted by Wetch as Managing Partner which identifies the Railroad Street Location as SSRE’s principal office. The substitute service, then, was properly effectuated at the Railroad Street Location, which was Wetch’s “usual place of business.”

Further, two or three attempts to personally serve a defendant at a proper place ordinarily qualifies as “reasonable diligence.” (Rodriguez v. Cho (2015) 236 Cal.App.4^th 742, 750; American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389; Stafford v. Mach (1998) 64 Cal.App.4^th 1174, 1182.) Here, Martinez made three attempts to personally serve Wetch before effectuating substitute service via “Luis ‘Doe.’”

The motion is denied.