Judge: Salvatore Sirna, Case: 21PSCV00361, Date: 2023-03-01 Tentative Ruling

Case Number: 21PSCV00361    Hearing Date: March 1, 2023    Dept: G

Plaintiff City of El Monte’s Application for Default Judgment

Respondent: NO OPPOSITION

TENTATIVE RULING

Plaintiff City of El Monte’s Application for Default Judgment is DENIED without prejudice. Furthermore, the entries of default against Defendant Suan Cheng Tung on January 13, 2023 and Defendants Timothy Tung and Hsue Fu Tung on January 23 are VACATED.

BACKGROUND

This is a nuisance abatement action. On January 9, 2020, the El Monte Police Department was executing a search warrant at a property in El Monte when they discovered large-scale and illegal indoor cultivation of marijuana.  

On May 7, 2021, the City of El Monte (Plaintiff) filed a complaint against Timothy Tung, Hsue Fu Tung, and Suan Cheng Tung (collectively, Defendants) as well as Does 1-100 alleging the following causes of action: (1) narcotics abatement, (2) public nuisance, (3) violation of El Monte municipal code, (4) violation of Unfair Competition Law, and (5) violation of MAUCRSA. On September 28, 2021, Plaintiff filed proofs of service claiming Plaintiff’s registered process server served Defendants via substitute service in El Monte on July 1, 2021.

On June 24, 2022, default was entered against Defendants. On December 12, Plaintiff submitted an application for default judgment against Defendants. On December 14, the court denied Plaintiff’s application and set aside the entry of default, noting Plaintiff’s proofs of service failed to include declarations of diligence.

On January 12, 2023, Plaintiff submitted updated proofs of service. On January 13, default was entered against Suan Cheng Tung. On January 23, default was entered against Timothy Tung and Hsue Fu Tung. At the court’s direction, Plaintiff resubmitted the present application for default on February 15.

An OSC Re: Submission of Default Judgment is set for March 1, 2023.

LEGAL STANDARD

Code of Civil Procedure section 585 permits entry of a default judgment after a party has filed to timely respond or appear.  A party seeking judgment on the default by the court must file a Request for Court Judgment, and: (1) a brief summary of the case; (2) declarations or other admissible evidence in support of the judgment requested; (3) interest computations as necessary; (4) a memorandum of costs and disbursements; (5) a proposed form of judgment; (6) a dismissal of all parties against whom judgment is not sought or an application for separate judgment under CCP § 579, supported by a showing of grounds for each judgment; (7) exhibits as necessary; and (8) a request for attorneys’ fees if allowed by statute or by the agreement of the parties.  (Cal. Rules of Court 3.1800.) 

ANALYSIS

Plaintiff seeks default judgment against Defendants. For the following reasons, the court DENIES Plaintiff’s application without prejudice.

“A default judgment entered against a defendant who was not served in the manner prescribed by statute is void.” (First American Title Insurance Company v. Banerjee (2022) 87 Cal.App.5th 37, 292.) “An individual may be served by substitute service only after a good faith effort at personal service has first been made: the burden is on the plaintiff to show that the summons and complaint ‘cannot with reasonable diligence be personally delivered’ to defendants. [Citations.] Two or three attempts to personally serve a defendant at a proper place ordinarily qualifies as ‘reasonable diligence.’” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389.) (Italics added.)

In this case, Plaintiff’s original proofs of service filed September 28, 2021, failed to include the required declarations of diligence. At the court’s direction, Plaintiff filed updated proofs of service on January 12, 2023. While the updated proofs of service include declarations of diligence, they still fail to demonstrate substitute service was proper. Each declaration describes the process server’s alleged substitute service on Defendants at 9:30 AM on July 1, 2021. However, the declarations fail to describe any attempt to serve Defendants prior to July 1 and this is insufficient to establish due diligence which requires multiple attempts at the proper place. (Kremerman v. White (2021) 71 Cal.App.5th 358, 372-373.)

Because Plaintiff’s proofs of service for Defendants remain deficient, service has not been established and the resulting entry of default was improper. Accordingly, the court DENIES Plaintiff’s application.

CONCLUSION

Based on the foregoing, Plaintiff’s application for default judgment is DENIED without prejudice. Furthermore, the entries of default as to all Defendants on January 13, 2023 and January 23 are VACATED.