Judge Randolph M. Hammock, Case 20STCV31581 2022-10-17 Tentative Ruling

Defendants’ objections 1 through 7 address evidence of the parties purportedly agreeing to mediate this dispute, including the execution of a tolling agreement. This Court is unaware of any legal authority which requires a court to rule on evidentiary objections on a motion, except as to a motion for summary motion/adjudication (CCP § 437c (q)] or a special motion to strike (CCP § 425.16 (b)(2)); see also, Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-949.)

Defendants move for relief solely under section 473(d). [FN 1] This section provides that “[t]he 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.” “[I]nclusion of the word “may” in the language of section 473, subdivision (d) makes it clear that a trial court retains discretion to grant or deny a motion to set aside a void judgment. [Citation.] However, the trial court has no statutory power under section 473, subdivision (d) to set aside a judgment that is not void.” (Kremerman v. White (2021) 71 Cal. App. 5th 358, 369.) “Generally, defendants have six months from entry of judgment to move to vacate. [Citation.] But, if ‘the judgment is void on its face, then the six month limit set by section 473 to make other motions to vacate a judgment does not apply.” [Citation.] (Id. 369-70.)

“A judgment ‘is considered void on its face only when the invalidity is apparent from an inspection of the judgment roll or court record without consideration of extrinsic evidence.’ [Citation.] When a default judgment has been taken, the judgment roll consists of ‘the summons, with the affidavit or proof of service; the complaint; the request for entry of default ..., and a copy of the judgment.’ (§ 670, subd. (a).) If the invalidity can be shown only through consideration of extrinsic evidence, such as declarations or testimony, the order/judgment is not void on its face.” [Citation.] (Id. at 370.) “To establish personal jurisdiction, compliance with statutory procedures for service of process is essential; if a default judgment was entered against a defendant who was not served with a summons as required by statute, the judgment is void, as the court lacked jurisdiction in a fundamental sense over the party and lacked authority to enter judgment.” (Kremerman v. White (2021) 71 Cal. App. 5th 358, 370.)

Defendant Campbell is a Canadian national. He maintains that he has “never lived in the US and ha[s] never sought permanent residence.” (Campbell Decl. ¶ 3.) He maintains an E-2 Visa “to facilitate [his] US business and personal travels.” (Id.) Defendant Campbell concedes that his mother purchased a property in Los Angeles at 935 Westbourne Dr. in 2011, then transferred ownership to him. (Campbell Decl. ¶ 4.) He states, however, that he never resided at the property and that G Management did not do business at the property. (Id. ¶ 5.) Campbell represents that he sold the property on December 22, 2020, and then purchased a property in Indian Wells, CA. (Id.) He contends service was only proper in Canada.

Defendant G Management, Inc., is a California Corporation. Defendant Campbell is the CEO, Secretary, and CFO of the entity. Defendant G Management, Inc., argues it had to be served at 9000 Sunset Boulevard, the address registered listed in its registration with the Secretary of State. [FN 2]

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, 416.20, 416.30, 416.40, or 416.50, 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.

(b) 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.

The process server states that he first went to the business address at 9000 Sunset Boulevard, but “determined that G Management, Inc. was not operating out of that address.” (Kissoondyal Decl. ¶ 5.) Thereafter, “through research,” the process server learned that “Defendant Chris Campbell had an ownership interest in a condominium located at 935 Westbourne Avenue, Unit 303, West Hollywood, CA 90069.” (Id. ¶ 6.) Defendant does not dispute that he has an ownership interest in the property.

The Process server first attempted service at the Westbourne property on September 10, 2020. At that time, he discovered that G Management was operating a travel agency from the property. (Id. ¶ 7.) He asked for Defendant Chris Campbell, but “was informed he was not in.” (Id.) The process server returned to the Westbourne property on September 11 and 13, but could not locate Defendant Campbell. (Id. ¶¶ 8, 9.) On September 14, the process server returned to the property and “left two copies of the Summons and Complaint with Teresa Penuellas.” (Id. ¶ 10.) Penuellas identified herself as an employee of G Management. (Id.) That same day, the process server mailed the summons and complaint to Chris Campbell at 935 Westbourne Avenue, Unit 303, West Hollywood, CA 90069.

When the process server executed the proofs of service, he “erroneously indicated the address was 936 Westbourne Avenue and not 935 Westbourne Avenue. These [sic] was merely a typographical error on the proof of services. I am informed and believe that there is no building number 936 Westbourne Avenue so there is no confusion that I went to a different building.” (Id. ¶ 11.)

It appears to be Defendants’ position that Plaintiff and the process server mistakenly or fraudulently served the Defendants at the nonexistent 936 Westbourne address, and then, once learning that this address did not exist, modified the proofs of service to reflect service at the 935 Westbourne address. Importantly, although the original Proofs of Service contained an incorrect address, Defendants have provided no indication the mailing itself listed (or was ultimately sent to) the wrong address.

This court finds the more likely scenario is that service validly occurred at the 935 Westbourne address, and that the original Proof of Service showing service on 936 Westbourne was merely a typo. Although Defendant Campbell states he “never resided in the 935 Property” and that G Management “did not do business at that address and never maintained any employees there,” it is notable that Defendants do not dispute that a person by the name of Teresa Penuellas was present at the address on the day of service. Defendants also do not dispute that Peneullas worked for them. If Penuellas had no affiliation with Defendants, this court would expect Defendants to say as much. Likewise, Defendants could have easily submitted a declaration from Penuellas disputing that a process server ever appeared at the property on September 14, 2020. They did not. Instead, they largely ignore this important point entirely.

At the time I became aware that an Abstract of Judgment had been sent to the Indian Wells property, I was unaware that plaintiff had represented to the court that G Management or I had been served with a complaint. I was unaware that a default had been entered against G Management or me. I was unaware that plaintiff had moved to prove-up a default judgment, that the court had set a hearing on the matter, that pleadings were filed or that notices were ordered and claimed to have been issued. I was unaware that a judgment had been issued.

But earlier in the same declaration, Defendant Campbell states that in “November of 2020” he “received a call from [attorney] Stephen C. Johnson ,” [FN 3] who informed him that Plaintiff had purported to serve him. (Id. ¶ 9.)

Based on the above, this court finds that substituted service occurred as to both Defendants at the 935 Westbourne address. The evidence shows Defendant G Management was served by substitute service on Teresa Penuellas, an individual present at the 935 Westbourne address who was apparently in charge of the office, confirmed by a subsequent mailing to the address. (See CCP § 415.20(a).) Similarly, the evidence shows this same transaction constitutes sufficient substituted service on Defendant Campbell, as Penuellas was the person who was apparently in charge of Campbell’s office or place of business. (See CCP § 415.20(b).) Substitute service was completed with a mailing to the address. Accordingly, the judgment is not void, much less void on its face. Moreover, even if Defendants could show a void judgment based on resort to extrinsic evidence, the motion is untimely under the six-month deadline.

Last but not least, this court notes that the evidence strongly suggests that Defendants had knowledge of the lawsuit in late 2020—nearly two years before they moved to challenge the sufficiency of service. Based on the above analysis, Defendants are not entitled to discretionary relief under section 473(d).

“A defendant . . . may serve and file a notice of motion for one or more of the following purposes: (1) [t]o quash service of summons on the ground of lack of jurisdiction of the court over him or her . . . .” (Code Civ. Proc., § 418.10, subd. (a).) “[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.]” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) “[T]he filing of a proof of service creates a rebuttable presumption that the service was proper” but only if it “complies with the statutory requirements regarding such proofs.” (Id. at pp. 1441-1442.) When a defendant moves to quash service of the summons and complaint, the plaintiff has “the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.” (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868.) “A court lacks jurisdiction over a party if there has not been proper service of process.” (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.)

The discussion above as to the motion to vacate is incorporated into this section in full. As explained previously, the evidence does not support Defendants’ argument that the proofs of service filed in this matter were improper or falsified. Rather, they demonstrate valid proof by substitute service on both Defendants. Moving past this argument, Defendants do not provide authority showing that service at the 935 Westbourne Address—assuming it happened—would be invalid to confer jurisdiction against Campbell or his company.

Although neither party gives much discussion to the minimum contacts analysis, Plaintiff has also shown that Defendant Campbell maintains minimum contacts with the forum by owning property in California and operating his business within the state.

Judge of the Superior Court

FN 1 -- This court notes that Defendant relies on CCP section 473(d), but has not invoked section 473(b) relief for “mistake, inadvertence, surprise, or excusable neglect.” Plaintiff’s opposition largely misstates Defendants’ motion as having been brought under the court’s equitable powers to set aside default judgments, but fails to address section 473(d).

FN 2 - This address was updated as the address for the registered agent for process of service on November 2, 2021, which is after service of the summons and complaint occurred.

FN 3 - It appears attorney Johnson never formally appeared as counsel for Defendants in this action. Johnson had represented Defendants in the past, however, and had been in communications with Defendant Campbell early in this case regarding issues with service and the potential for mediation. (See Nimoy Decl. ¶¶ 9, 10, 11, 12.)