Judge Sarah J. Heidel, Case Number: 24NNCV01100, Date: 2025-01-21 Tentative Ruling

Judge: Sarah J. Heidel, Case: 24NNCV01100, Date: 2025-01-21 Tentative Ruling

Case Number: 24NNCV01100 Hearing Date: January 21, 2025 Dept: V

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT

DEPARTMENT V

EXECUTIVE FINANCIAL ENTERPRISES INC., a California Corporation, assignee of UNITED PARCEL SERVICE, INC. aka UPS, Plaintiff, vs. WOOD PANEL WALL USA, a California Corporation DBA WOOD PANEL WALL aka WOOD PANEL USA.; and DOES 1 through 10, inclusive, Defendants. Case No.: 24NNCV01100 Hearing Date: January 21, 2025 Time: 8:30 a.m. [TENTATIVE] ORDER RE: MOTION OF DEFENDANT WOOD PANEL WALL USA TO VACATE ENTRY OF DEFAULT AND DEFAULT JUDGMENT AND TO QUASH SERVICE OF SUMMONS

MOVING PARTIES: Defendant WOOD PANEL WALL USA

RESPONDING PARTY: Unopposed

The court considered the moving papers.

BACKGROUND

Plaintiff Executive Financial Enterprises Inc., assignee of United Parcel Service, Inc. (UPS), filed the complaint on April 22, 2024, against defendant Wood Panel Wall USA dba Wood Panel Wall aka Wood Panel USA. The complaint alleges two causes of action for open book account and account stated arising from labor and services that plaintiff alleges were provided to defendant by UPS in the amount of $215,321.80. UPS assigned the debt to plaintiff who seeks recovery of the principal sum, interest and attorneys fees.

On June 14, 2024, plaintiff filed proof of service by substitution. The court entered default and default judgment against defendant on July 15, 2024.

On August 27, 2024, defendant filed this motion to set aside the default. Plaintiff has not filed an opposition.

LEGAL STANDARD

Setting Aside/Vacating Default Judgment

“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473(b).) Application for this relief shall be made within a reasonable time, in no case exceeding six months, after judgment, dismissal, order, or proceeding was taken. (Code Civ. Proc., § 473(b).)

“The court may . . . on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc., § 473(d).)

Quashing Service of Summons

“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(a)(1).)

“[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 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.)

DISCUSSION

A. Motion to Set Aside Default Judgment

Defendant moves to vacate and set aside the entry of default and default judgment of plaintiff, dated July 15, 2024, pursuant to Code of Civil Procedure section 473(b) and 473(d).

Defendant argues that the court lacks personal jurisdiction over it the summons did not conform to Code of Civil Procedure section 412.30. Under Code of Civil Procedure section 412.30, “the copy of the summons that is served shall contain a notice stating in substance: ‘To the person served: You are hereby served in the within action (or special proceeding) on behalf of (here state the name of the corporation or the unincorporated association) as a person upon whom a copy of the summons and of the complaint may be delivered to effect service on said party under the provisions of (here state appropriate provisions of Chapter 4 (commencing with Section 413.10) of the Code of Civil Procedure)’” in an action against a corporation. (Code Civ. Proc., § 412.30.) “If such notice does not appear on the copy of the summons served, no default may be taken against such corporation or unincorporated association or against such person individually, as the case may be.” (Code Civ. Proc., § 412.30.)

A judgment is void if it is rendered when the court lacked personal or subject matter jurisdiction. (Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1239.) “California courts have held that ‘compliance with the statutory procedures for service of process is essential to establish personal jurisdiction .... Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.’” (California Capital Insurance Company v. Hoehn (2024) 17 Cal.5th 207 (citing Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444).) In Dill v. Berquist Construction Co., the court held that when the basis of defendant’s motion to set aside default judgment is that plaintiff

failed to effect valid service, the evidentiary burden is on plaintiff to establish that defendant has been validly served. (Dill, supra, 24 Cal.App.4th at 1441.)

The notice on the summons does not indicate in what capacity Tal Mechaly was being served, as an individual defendant, the person sued under a fictitious name, or on behalf of any entity nor pursuant to which statute. Accordingly, the court finds that the summons did not conform to Code of Civil Procedure section 412.30, and no default may be taken against defendant as per section 412.30. Additionally, plaintiff has made no attempt to establish that defendant was validly served since plaintiff has not offered an opposition arguing such. The court finds that it lacked personal jurisdiction over defendant.

Defendant also argues that the summons and complaint were improperly served because plaintiff served defendant by leaving a copy with the manager of the private post office box. “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.” (Code Civ. Proc., § 415.20(a).)

Plaintiff filed the proof of service by substituted service showing plaintiff left a copy of the summons and complaint with “Dan Doe”, “manager in charge of mailbox facility” and mailed a copy of the summons and complaint at that same address. This method is proper under Code of Civil Procedure section 415.20.

Defendant also brings this motion pursuant to Code of Civil Procedure section 473(b). Defendant offers the declaration of Tal Mechaly’s in support of the motion. Mechaly states that the mailbox was not checked because he was on vacation out of the country and was off from work for a week because of a holiday. That is not excusable neglect. Furthermore, at the time he

discovered the summons on June 28, 2024, default had not yet been entered which gave him plenty of time to address the matter. (Mechaly Decl., ¶ 4.) Though defendant’s office contacted its attorney regarding the summons, Mr. Mechaly did not have an appointment with the attorney until July 10, 2024, (Mechaly Decl., ¶ 6), which was before default was entered on July 15, 2024, giving defendant sufficient time to respond. The Mechaly declaration does not establish grounds to set aside the default judgment.

The court finds that because plaintiff failed to conform to Code of Civil Procedure section 412.30, which means the court lacked personal jurisdiction over defendant, the default judgment is void. Accordingly, the court sets aside the default judgment pursuant to Code of Civil Procedure section 473(d).

B. Motion to Quash Service of Summons

Defendant also moves to quash the summons on the complaint pursuant to Code of Civil Procedure section 418.10 subdivisions (a)(1) and (d) as service was ineffective under Code of Civil Procedure section 412.30.

As discussed above, the court lacks jurisdiction over defendant because service of process was improper as it failed to conform to Code of Civil Procedure section 412.30. Plaintiff did not meet its burden to show that service was proper, as discussed above. Although defendant’s motion to quash exceeds the time as set out in Code of Civil Procedure section 418.10(a), the same allows the court to extend the for good cause. Accordingly, the court grants the motion to quash service of summons.

C. Filing Fees

Defendant filed one motion for what is two motions: motion to set aside default judgment and motion to quash service of summons. Combining the motions allows the moving party to avoid paying the requisite filing fees. Filing fees are not jurisdictional and it is mandatory for

court clerks to demand and receive them. (See Duran v. St. Luke’s Hospital (2003) 114 Cal.App.4th 457, 460.) The court orders defendant is ordered to pay an additional filing fee.

Based on the foregoing, the court GRANTS the motion to set aside the default judgment and the motion to quash service of summons.

The court orders defendant to pay an additional filing fee.

Defendant is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: January 21, 2025

_____________________________

Sarah J. Heidel

Judge of the Superior Court