Judge Randolph M. Hammock, Case Number: 23STCV18267, Date: 2024-10-04 Tentative Ruling

Judge: Randolph M. Hammock, Case: 23STCV18267, Date: 2024-10-04 Tentative Ruling

MOTION OF DEFENDANTS FOR RELIEF FROM VOID DEFAULTS AND VOID DEFAULT JUDGMENT (CODE CIV. PROC., § 473, SUBD. (D); IN THE ALTERNATIVE, MOTION TO SET ASIDE DEFAULTS AND DEFAULT JUDGMENT (CODE CIV. PROC., § 473, SUBD. (B); OR VACATE DEFAULTS AND DEFAULT JUDGMENT ON EQUITABLE GROUNDS

The court entered Defendants’ Diprizio and Triple 2’s defaults on November 28, 2023 and November 21, 2023, respectively. On February 29, 2024, this court entered a default judgment against Defendants in the total amount of $195,456.41. Plaintiff served Notice of Entry of Judgment on March 1, 2024.

Defendants’ Motion for Relief from Void Defaults and Void Default Judgments is GRANTED. Hence, the default judgment entered on February 29, 2024 is set aside and declared NULL and VOID.Unless Defendants voluntarily accept service of process and/or unless Defendants voluntarily generally appear in this case, Plaintiff will be required to properly serve Defendants, as provided under California law. Hence, the Motion to Quash Service of Summons set for October 9, 2024 is ADVANCED and VACATED as MOOT. [FN 1]

Defendants first move for relief under CCP section 473(d), contending the judgment is void due to improper service and for lack of personal jurisdiction. Section 473(d) 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.” (§ 473(d).) “[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.)

The court entered the default judgment on February 29, 2024. Defendants filed this motion to set aside the judgment on August 23, 2024. Therefore, the motion was timely filed within the 6-month deadline, and the judgment need not be void on its face.

“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.) A plaintiff bears “the burden of showing facts requisite to a valid service. (Lebel v. Mai (2012) 210 Cal. App. 4th 1154, 1163.) “The filing of a proof of service declaration ordinarily creates a rebuttable presumption that the service was proper, but only if the service declaration “complies with the statutory requirements regarding such proofs.” (Id.)

(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 Proof of Service of Summons reflects service on individual Defendant DiPrizio by substitute service on October 10, 2023. (See RJN, Exh. E, ¶¶ 3(a), 5.) The process server left the documents with Yvonne Apicella at 226 Everett St, Boston, MA 02128. (Id. ¶¶ 4 and 5(b).) Apicella is identified in the Proof of Service as the “Co-Resident/Mother.” (Id. ¶ 5(b).)

The Declaration of Diligence reflects 6 attempts to serve Defendant DiPrizio. (RJN, Exh. E, “Declaration of Diligence.) On the First, Second, and Third attempts, there was no answer at the address. (Id.) On the Fourth attempt, “[u]pon arrival to the address, Jane Doe, resident, stated the subject is known and the subject is the owner of the address but the subject is not a resident.” (Id.) On the Fifth attempt, there was no answer. (Id.) Finally, on the Sixth attempt, the process server “served the documents with direct delivery to Yvonne Apicella, resident and mother of the subject.” (Id.)

Defendants argue the judgment here is void on its face because the process server’s declaration in the proof of service showed that he had been advised that Mr. DiPrizio was “not a resident” at the Massachusetts Property, and thus that this address was not his “dwelling house” or “usual place of abode” for purposes of substitute service at a residence. (Code Civ. Proc., § 415.20, subd. (b).)

Based on the declaration provided by Defendant DiPrizio, Defendant owned the Everett Street property but did not reside there with his mother. (DiPrizio Decl. ¶¶ 6-9.) The process server was informed of this fact yet attempted to substitute serve Defendant DiPrizio there anyway. It does not appear that Plaintiff has provided any evidence in opposition refuting this point. This means that property was not Defendant’s dwelling house, usual place of abode, usual place of business, or usual mailing address. (CCP § 415.20.) Therefore, Defendant could not be validly served there by substitute service.

(a) To the person designated as agent for service of process as provided by any provision in Section 202, 1502, 2105, or 2107 of the Corporations Code (or Sections 3301 to 3303, inclusive, or Sections 6500 to 6504, inclusive, of the Corporations Code, as in effect on December 31, 1976, with respect to corporations to which they remain applicable).

(b) To the president, chief executive officer, or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a controller or chief financial officer, a general manager, or a person authorized by the corporation to receive service of process.

(d) If authorized by any provision in Section 1701, 1702, 2110, or 2111 of the Corporations Code (or Sections 3301 to 3303, inclusive, or Sections 6500 to 6504, inclusive, of the Corporations Code, as in effect on December 31, 1976, with respect to corporations to which they remain applicable), as provided by that provision.

Here, the Proof of Service of Summons reflects service on Defendant Triple 2 Digital, LLC, by personal service on October 10, 2023. (See RJN, Exh. D, ¶¶ 3(a), 5.) Yvonne Apicella was served on behalf of the LLC at 226 Everett St, Boston, MA 02128. (Id. ¶¶ 3(b) and (4). Apicella is identified in the Proof of Service as an “Affiliate Authorized to Accept.” (Id. ¶ 3(b).)

Defendant argues service on Apicella (Plaintiff’s mother) was insufficient because Triple 2 Digital LLC has never designated Apicella as its “agent.” (Diprizio Decl. ¶ 9.) Indeed, there is no evidence that Apicella was authorized to accept service on the corporation’s behalf. Therefore, the service on the entity was invalid.

On September 18, 2024—after Defendants filed the instant motion and two days before Plaintiff filed its opposition to the motion—Plaintiff filed an “Affidavit of Service” which reflects service on Defendants at 1607 17th St W APT 306, Billings, MT on August 22, 2023. [FN 3] (09/18/2024 Affidavit of Service; Baranov Decl. Exh. C.) Specifically, the Affidavit states the process server “entered the avenue C apartment building and handed two copies of the documents to the building receptionist.” (Id.) The process server then sent a copy of the documents via certified mail the same day. (Id.)

On form POS-010, a process server must “declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.” This follows from CCP § 2015.5, which requires that where “any matter is required or permitted to be supported, evidenced, established, or proved by the sworn statement, declaration, verification, certificate, oath, or affidavit,” it be “so certified or declared under the laws of the State of California.” (CCP 2015.5.)

Here, the “Affidavit of Service” used for the Montana service includes no such attestation. Instead, the process server states only: “I, Crystal West, being duly sworn, depose and say: I am over the age of 18 years and not a party to this action, and that within the boundaries of the state where service was effected, I was authorized by law to make service of the documents and informed said person of the contents herein.” (09/18/2024 Affidavit of Service; Baranov Decl., Exh. C.)

Thus, the Montana Affidavit neither indicates it was executed in California nor provided that it was executed under penalty of perjury under the laws of the State of California. (See Myzer v. Emark Corp. (1996) 45 Cal.App.4th 884, 890, fn. 4 [verification made under penalty of perjury under the laws of the State of Illinois did not comply with § 2015.5].) It is therefore invalid, and it does not establish that valid service occurred in Montana.

Finally, there is another “Return of Service” showing service in Montana. (DiPrizio Decl. ¶ 10, Exh. 9.) This was provided by Defendants with their motion but does not appear to have ever been filed by Plaintiff. This document reflects service on August 23, 2023, apparently by leaving a copy of the documents with a “property manager” at 1607 17th St W, Billings, Montana 59102. (Id.) But again, this Return of Service was not executed under penalty of perjury under the laws of California. Therefore, any attempts to serve the Defendants in Montana are void based upon that invalid Proof of Service.

Judge of the Superior Court

FN 1 - Of course, if the Defendants want this Court to rule upon the “personal jurisdictional” issues raised by them in their motion to quash, this Court is certainly willing to do so on October 9th, if the Defendants will waive any service requirements. In other words, the Defendants can simply require the Plaintiff to properly serve them, and then they could refile the same motion to quash, or they can simply waive any further service, and allow this Court to hear its motion to quash on the merits of their “lack of personal jurisdiction” arguments. In either case, the default judgment will be voided.

FN 2 - Because Defendants are receiving relief under 473(d), the court need not address whether relief under 473(b) might also apply. Additionally, at this time there is no need for this Court to address the “personal jurisdictional” arguments proffered by Defendants in their moving papers, as well in their separately filed motion to quash. [See, Motion for Relief, Argument V (B)]

FN 3 - This means that Plaintiff attempted to serve the Defendants first in Montana in August, and then in Massachusetts in October. This might suggest that Plaintiff believed the attempts to serve Defendants in Montana were invalid. After all, Plaintiff did not even file this “Affidavit of Service” with the court until after Defendants filed their motion for relief.

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.