Judge: Salvatore Sirna, Case: 22PSCV00115, Date: 2023-02-16 Tentative Ruling

Case Number: 22PSCV00115    Hearing Date: February 16, 2023    Dept: G

Defendant Ivory Blockmon’s Motion to Quash Proof of Service and Quash/Strike Complaint

Respondent: Plaintiff So Cal Builders & Design, Inc.

TENTATIVE RULING

Defendant Ivory Blockmon’s Motion to Quash Proof of Service and Quash/Strike Complaint is DENIED.

BACKGROUND

In this breach of contract action, Plaintiff So Cal Builders & Design, Inc. entered into a contract with Defendant Ivory Blockmon to provide construction services in exchange for $148,640 from the Defendant. After the Plaintiff completed a majority of the work, the Defendant unilaterally terminated the contract and refused to pay the remaining $35,686.39. On February 4, 2022, Plaintiff filed a Complaint against the Defendant and Does 1-25, alleging the following causes of action: (1) breach of written contract and (2) foreclosure of mechanic’s lien. On March 15, Plaintiff’s registered process server effected substitute service on Defendant in Diamond Bar after attempting personal service twelve prior times at the same address.

On April 26, 2022, the court entered default against Defendant. On December 1, the court granted Plaintiff’s application for default judgment against Defendant. On December 2, Defendant filed the present motion.

A hearing on the motion is set for February 16, 2023.

ANALYSIS

Defendant moves to quash the service of summons and the complaint in this action on the grounds that actual notice was not given pursuant to Code of Civil Procedure section 418.10.

For the following reasons, the court ­DENIES Defendant’s motion.

Pursuant to Code of Civil Procedure section 418.10, “[a] defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion . . .  [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)(1).) In this case however, Defendant cannot file a motion to quash service of summons pursuant to Code of Civil Procedure section 418.10 as the time to file a responsive pleading has long expired as evidenced by the entry of default against Defendant in April 2022.

However, Defendant also seeks relief pursuant to Code of Civil Procedure section 473.5, which states as follows:

“When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action.  The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.” (Code Civ. Proc., § 473.5, subd. (a).) 

While Plaintiff argues this statute is inapplicable because more than 180 days have elapsed since default was entered against Defendant, the court disagrees. The statute requires the motion to be filed no later than “180 days after service on him or her of a written notice that the default or default judgment has been entered.” (Code Civ. Proc., § 473.5, subd. (a) (emphasis added).) Because Defendant’s motion was filed one day after default judgment was entered and before Plaintiff could even issue written notice of the judgment, the court finds Defendant’s motion is timely pursuant to section 473.5.

Defendant argues Defendant was not properly served because Plaintiff’s registered process server utilized substitute service instead of personal service. “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.)

Here, Plaintiff’s registered process server provided a declaration of reasonable diligence that identified twelve prior attempts to personally serve Defendant at the address in Diamond Bar on February 7, February 8, February 10, February 12, February 14, February 16, February 18, March 8, March 10, March 11, March 12, and March 13. Thus, the court finds substitute service on Defendant was appropriate.

In describing the substitute service, Plaintiff’s process server states, “At the time of service encountered male occupant at driveway. Claimed subject was unknown. Refused to accept. Announced service placed documents on ground in occupant’s view.” In response, Defendant claims the person served “stated that they had no knowledge of the person being served and stated so on more than one occasion” and “was not exiting or entering the attached garage to the premises” or “leaving or entering the front door of the premises.” (Motion, p. 7:1-4.) The court questions that if Defendant does not know the individual or was not made aware of the substitute service, Defendant could not know how many times the individual denied knowing Defendant or where Defendant was headed.   

Based on the detail provided by Defendant, however, it is evident to the court that Defendant was in fact made aware of the substitute service by the individual served. Defendant also admits to residing at the Diamond Bar location, albeit as the only adult. (Motion, p. 7:5-8.) Additionally, Plaintiff submitted a declaration from Plaintiff’s registered process server that identified the individual served as an individual in wedding photographs with Defendant that were posted on Defendant’s Facebook account. (Medina Decl., ¶ 6-7; Netzah Decl., ¶ 19.)

Furthermore, although Defendant challenges the propriety of the service and proof of service, Defendant’s affidavit does not deny Defendant had actual notice. (See, Tunis v. Barrow (1986) 184 Cal.App.3d 1069, 1079-1080 [because moving party has burden to demonstrate good cause to vacate default, motion to vacate denied where moving party’s declarations fail to show actual notice is lacking].) In fact, the declaration by Plaintiff’s counsel suggests the opposite. Plaintiff’s counsel states counsel was in communication with Defendant before the complaint was even filed and on February 10, 2022, emailed Defendant notice of a case management conference set for June 20, 2022. (Netzah Decl., ¶ 3.) From February to June 2022, Plaintiff’s counsel was in constant communication with Defendant through phone, text, and email. (Netzah Decl., ¶ 4.)

Even if Defendant did establish a lack of actual notice, the court may not set aside the default pursuant to Code of Civil Procedure section 473.5 if the lack of notice was caused by Defendant’s avoidance of service. (Code Civ. Proc., § 473.5, subd. (c).) In this case, the facts lead the court to conclude that Defendant was avoiding service:  (1) Plaintiff’s counsel communicated with Defendant regarding this action prior to the lawsuit’s filing and (2) Plaintiff’s process server was unable to personally serve Defendant on at least twelve ocassions at an address at which Defendant admits to residing.

Thus, the court finds that Defendant is not entitled to relief under Code of Civil Procedure section 473.5.

Lastly, Defendant seeks relief under Code of Civil Procedure section 473. However, relief under this section must be promptly sought within six months of the entry of judgment. (Code Civ. Proc., § 473, subd. (b); Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.) Even if Defendant’s request for relief under Code of Civil Procedure section 473 was timely, which the court finds it was not, Defendant did not establish mistake, inadvertence, surprise, or excusable neglect.

Accordingly, the court DENIES Defendant’s motion.

CONCLUSION

Based on the foregoing, Cross-Defendant’s motion to quash service is GRANTED.