Judge: Serena R. Murillo, Case: 21STCV07271, Date: 2023-03-10 Tentative Ruling
Case Number: 21STCV07271 Hearing Date: March 10, 2023 Dept: 29
TENTATIVE
Defendant Braxton R, LLC’s
motion to set aside default is GRANTED.
Legal Standard
CCP
section 473.5(a)
CCP § 473.5(a) provides: “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.” (CCP § 473.5(a).)
“A notice of motion to set aside a default or default
judgment and for leave to defend the action shall designate as the time for
making the motion a date¿prescribed by subdivision (b) of Section 1005, and it
shall be accompanied by an affidavit showing under oath that¿the¿party's lack
of actual notice in time to defend the action was not caused by his¿or
her¿avoidance of service or inexcusable neglect.” (CCP §
473.5(b).)
“‘[A]ctual notice’ in section 473.5 ‘means genuine
knowledge of the party litigant . . . .’ [Citations.] ‘[A]ctual
knowledge’ has been strictly construed, with the aim of implementing the policy
of liberally granting relief so that cases may be resolved on their
merits.’ [Citation.]” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 547.) “[A] party can
make a motion showing a lack of actual notice not caused by avoidance of service
or inexcusable neglect . . .” (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180.) “‘[I]t does not
require a showing that plaintiff did anything improper . . . . [T]he defaulting
defendant simply asserts that he or she did not have actual notice’.” (Id.)
CCP section 473(d)
CCP § 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.”
“Notice of the
litigation does not confer personal jurisdiction absent substantial compliance
with the statutory requirements for service of summons.” (MJS
Enterprises, Inc. v. Superior Court (1984) 153 Cal.App.3d 555, 557 (citing Ault
v. Dinner For Two, Inc. (1972) 27
Cal.App.3d 145, 148).) When the summons was not served in substantial
compliance with the statutory requirements, the court does not obtain personal
jurisdiction over the defendant. (See ibid.) A “default
judgment entered against a defendant who was not served with a summons in the
manner prescribed by statute is void. Under § 473(d), the court may set aside a
default judgment which is valid on its face, but void, as a matter of law, due
to improper service.” (Ellard v. Conway (2001) 94 Cal.App.4th 540,
544.) Where service is challenged, the burden is on the plaintiff to
prove the facts requisite to an effective service. (Lebel v. Mai
(2012) 210 Cal.App.4th 1154, 1160.) Statutes “governing substitute
service shall be ‘liberally construed to effectuate service and uphold
jurisdiction if actual notice has been received by the defendant.’” (Hearn
v. Howard (2009) 177 Cal.App.4th 1193, 1201.)
Discussion
Defendant
contends that the Court should set aside entry of default against it because it
was not served with the Summons or Complaint. Braxton R was allegedly
served by personal service at a location in Torrance, California. While
the service address appears to be the correct address for the agent for service
of process of Braxton R, that agent states that she was never served with any
pleadings related to this action and never received any notification about this
case either in person or in the mail. Braxton R only very recently became aware
of the Request for Entry of Default filed against when the insurance carrier
for Plaintiffs in this auto accident case contacted the
third-party administrator (“TPA”) for Braxton R’s insurance carrier and
informed it of an uninsured motorist claim that Plaintiff had filed with his
own insurance carrier concerning the accident. In April of 2022, the carrier
for Braxton R (not Braxton R) made contact with Plaintiffs’ counsel who first
informed the TPA of the existence of the lawsuit, the alleged service of
Summons and Complaint, and the filing of a Request for Entry of Default.
In this case, the motion has been properly
brought within two years that entry of default was entered against Defendant.
As to the merits, the Court finds that Defendant has demonstrated that it
did not have actual notice of the complaint in time to defend, and that it was
not avoiding service. CCP section 416.10 provides in relevant part that service on a
corporation may be effected by delivering a copy of the summons and complaint
on (a) the person designated as agent for service of process or (b) “[t]o 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.” The proof of service indicates that Defendant
Braxton was served on March 2, 2021 at 1217 Cota Avenue in Torrance, California
90501, and the person served was Haidee K Cerritos, the person authorized to
accept service of process. (Proof of Service.) However, Cerritos declares
under penalty of perjury that she is the agent for service of process for
Defendant Braxton, but she has never been personally served with any pleadings
or documents regarding this lawsuit on behalf of Defendant Braxton. (Cerritos
Decl., ¶ 6.) She has never received any papers or
documents regarding this lawsuit. (Id.) She was informed by her insurance
carrier that Plaintiffs claimed that someone personally delivered a copy of the
summons and complaint to her. (Id.) In such circumstances, fairness requires
the default be set aside. (See Olvera v. Olvera (1991) 232 Cal.App.3d 32, 40
(“[S]ection 473.5 reflects the understanding that if any form of service of
summons does not result in actual knowledge, fundamental fairness may require
that a subsequent default be set aside.”).)
Further,
as the summons was not served in substantial compliance with the statutory
requirements, the default is void and must be set aside under CCP section
473(d) as well.
Conclusion
Based on the foregoing, Defendant’s motion
to set aside entry of default is GRANTED.
Defendant is ordered to file its responsive
pleading within 10 days of this order.
Moving
party is ordered to give notice.