Judge: Peter A. Hernandez, Case: 22PSCV00148, Date: 2023-12-12 Tentative Ruling

Case Number: 22PSCV00148    Hearing Date: December 12, 2023    Dept: K

1.         Defendant Ramon and Son Roofing Inc.’s Motion to Vacate Default and Default Judgment Entered on June 7, 2022 and to Recall All Writs of Execution or Levy Issued Against Defendant and for an Issuance of an Order Commanding Plaintiff to Return the Funds Already Levied by Plaintiff Against Defendant is DENIED.

2.         Defendant Konstruct Inc.’s Motion to Vacate Default and Default Judgment Entered on June 7, 2022 and to Recall All Writs of Execution or Levy Issued Against Defendant and for an Issuance of an Order Commanding Plaintiff to Return the Funds Already Levied by Plaintiff Against Defendant is DENIED.

Background[1]          

Plaintiff Creditors Adjustment Bureau, Inc. (“Plaintiff”) is a collection agency assigned this matter by State Compensation Insurance Fund (“Assignor”). Plaintiff alleges that its Assignor and Defendants Ramon and Son Roofing, Inc. aka Ramon and Son Roofing Inc. aka Ramon & Son Roofing, Inc. (“Ramon & Sons”) and Konstruct Inc. aka Konstruct (“Konstruct”) (together, “Defendants”) entered into a written agreement wherein Assignor agreed to provide policies of workers compensation insurance to Defendants, bearing Policy Nos. 9262149-19 (covering the period of October 9, 2019 through October 9, 2020) and 9262149-20 (covering the period of October 9, 2020 through April 30, 2021), in exchange for Defendants’ payment of premiums. Plaintiff alleges that Defendants failed to pay premiums.

On February 14, 2022, Plaintiff filed a complaint, asserting causes of action against Defendants and Does 1-10 for:

1.               Breach of Contract

2.               Open Book Account

3.               Account Stated

4.               Reasonable Value

On April 28, 2022, Defendants’ defaults were entered.

On June 7, 2022, default judgment was entered.

1.         Motion to Vacate Re: Ramon & Sons

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 

Ramon & Sons moves the court for an order vacating the default judgment entered June 7, 2022. Ramon & Sons also seeks an order vacating all writs and/or levies against it in favor of Plaintiff and an order commanding Plaintiff to return the funds already levied against it.

Ramon & Sons contends that the default judgment is void due to improper service of process. They argue that Plaintiff’s proof of service filed April 18, 2022 as to Ramon & Sons is faulty because it did not include a declaration of diligence stating what actions were taken first to attempt to personally serve the summons and complaint to Eriberto Ramon (“Eriberto”), their agent for service of process, prior to effectuating substitute service. (Yadidi Decl., ¶ 4, Exh. 1.)

Ramon & Sons’ position, however, is incorrect. Ramon & Sons is a corporation. “A summons may be served on a corporation by delivering a copy of the summons and complaint. . . (a) To the person designated as agent for service of process. . .” (Code Civ. Proc., § 416.10, subd. (a).)

Plaintiff’s counsel Kenneth Freed (“Freed”) has provided the court with a printout from the California Secretary of State website regarding Ramon & Sons effective November 11, 2021, which identifies Eriberto as its agent for service of process. (Freed Decl., ¶ 2, Exh. 1). The printout identifies Ramon & Sons’ address and mailing address, as well as its agent for service of process’ address, as “1429 W 35th Place, Los Angeles, CA 90018” (“W. 35^th Place address”); no other addresses are identified. The W. 35^th Place address is the same address reflected on Plaintiff’s proof of service filed April 18, 2022.

Further, Code of Civil Procedure § 415.20, subdivision (a) provides, in relevant part, as follows:

In lieu of personal delivery of a copy of the summons and complaint to the

person to be served as specified in Section 416.10. . ., a summons may be

served by leaving a copy of the summons and complaint during usual office

hours in his or her office or, if no physical address is known, at his or her

usual mailing address, other than a United States Postal Service post office

box, with the person who is apparently in charge thereof, and by thereafter

mailing a copy of the summons and 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. When service is effected by leaving a copy of the

summons and complaint at a mailing address, it shall be left with a person at

least 18 years of age, who shall be informed of the contents thereof. Service

of a summons in this manner is deemed complete on the 10th day after the

mailing.

Subdivision (a) does not contain any “reasonable diligence” requirement, as set forth in subdivision (b). (See Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2023) ¶ 4:196 [“The big difference in using substitute service for individual, as opposed to entity, defendants is that a good faith effort at personal service must first be attempted. I.e., there must be a showing that summons ‘cannot with reasonable diligence be personally delivered’ to the individual defendant. [CCP § 415.20(b)] (No such showing is necessary for substitute service on entity defendants; see CCP § 415.20(a))”].)

Ramon & Sons’ motion, then, is denied.

2.         Motion to Vacate Re: Konstruct

Legal Standard

See Motion #1.

Discussion

Konstruct moves the court for an order vacating the default judgment entered June 7, 2022. Konstruct also seeks an order vacating all writs and/or levies against it in favor of Plaintiff and an order commanding Plaintiff to return the funds already levied against it.

Konstruct’s argument is identical to that raised by Ramon & Sons’ above.

In opposition, however, Plaintiff’s counsel Freed has provided the court with a printout from the California Secretary of State website regarding Konstruct effective November 11, 2021, which identifies Vlad Garber as its agent for service of process. (Freed Decl., ¶ 2, Exh. 1). The printout identifies Konstruct’s address and mailing address, as well as its agent for service of process’ address, as “3964 Bixby, La Verne, CA 91750” (“Bixby address”); no other addresses are identified. The Bixby address is the same address reflected on Plaintiff’s proof of service filed April 18, 2022. Again, Code of Civil Procedure § 415.20, subdivision (a) does not contain any “reasonable diligence” requirement.

Konstruct’s motion is denied.