Judge: Theresa M. Traber, Case: 22STCV27100, Date: 2025-05-28 Tentative Ruling

Case Number: 22STCV27100    Hearing Date: May 28, 2025    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     May 28, 2025             JUDGMENT: November 21, 2023

CASE:                         Image Rock, Inc. v. Kenneth Sampson, et al.

CASE NO.:                 22STCV27100           

MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT

MOVING PARTY:               Defendants Kenneth Sampson and BDS Construction, Inc.

RESPONDING PARTY(S): Plaintiff Image Rock, Inc.

CASE HISTORY:

·         08/22/22: Complaint filed.

·         11/21/23: Default Judgment entered.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is a negligence and breach of contract action arising from construction defects. Plaintiff alleges that Defendants negligently designed and performed their work on a construction project and then abandoned the project entirely.  

Defendants move to set aside the default and default judgment entered against them.

TENTATIVE RULING:

Defendants’ Motion to Set Aside is GRANTED.

Defendants are ordered to file and serve a clean, standalone copy of their proposed Answer and Cross-Complaint within 10 days of this order.

DISCUSSION:

Defendants move to set aside the default and default judgment entered against them so that they may file their proposed answer and cross-complaint. Defendants argue that the summons and complaint were not properly served, thereby voiding the default and default judgment.

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).) There is no time limit for a motion to set aside a void judgment for improper service. (California Capital Ins. Co. v. Hoehn (2025) 17 Cal. 5th 207, 225-26 [abrogating previous doctrine imposing a two-year deadline to bring a motion under section 473(d) for improper service].)

The primary method of service of process is personal service, which must be attempted before any other method. (See Code Civ. Proc. §§ 415.10, 415.20(a).) To properly serve a corporation, a plaintiff may serve (a) the corporation’s designated agent for service of process; (b) the president, chief executive officer, or other head of corporation, a vice president, secretary or assistant secretary, treasurer or assistant treasurer, controller or chief financial officer, or a general manager; or (c) if the corporation is a bank, a cashier or assistant cashier. (Code Civ. Proc. § 416.10.)

The proofs of service on which default was entered against both the individual and corporate Defendants were filed on October 17, 2022, and stated that service was made by substitute service. (See Proofs of Substitute Service.) Code of Civil Procedure section 415.20 governs substituted service of the Summons and Complaint. This statute provides, as relevant here:

(a) In lieu of personal delivery of a copy of the summons and complaint to the person to be served [. . .], 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, [. . .], 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. When service is effected by leaving a copy of the summons and complaint at a mailing address, it shall be left with a person at least 18 years of age, who shall be informed of the contents thereof. Service of a summons in this manner is deemed complete on the 10th day after the mailing.

(b) If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served [. . .], 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 [. . .], 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.

(Code Civ. Proc. § 415.20 (a)-(b) [emphasis added].) Ordinarily, “two or three attempts” at personal service will satisfy the requirement of reasonable diligence. (Bein v. Brechtel Jochim Grp. Inc. (1992) 6 Cal.App.4th 1387, 1391-92.)

The proof of Substituted Service as to Defendant Sampson states that substituted service was made by delivering a copy of the pleadings to a “Dee Doe” at 23615 Welby Way, West Hills, CA 91307 on September 2, 2022 at 1:50 PM and thereafter mailing the documents on September 6. (Proof of Service [Sampson] ¶¶ 5-6.) The process server’s declaration of diligence states that the process server made only two attempts at personal service before substituted service was made, one on August 30, 2022 at 8:05 PM, and then a second the next morning on August 31, 2022 at 9:20 AM. (POS Attachment.) Although Plaintiff argues in opposition that these attempts were sufficient, the Court does not consider an attempt at service at 8:05 PM—well outside of regular business hours—to be a reasonable attempt at personal service. The proof of service therefore evidences only one meaningful attempt at service, and does not demonstrate reasonable diligence to the Court’s satisfaction. The Court therefore finds that Plaintiff was not entitled to attempt substituted service on Defendant Sampson, and, thus, that service was not validly made as to the individual Defendant.

As to Defendant BDS, Inc., the Proof of Service simply states that substituted service was made without any attempt to demonstrate reasonable diligence in attempting personal service. (See Proof of Service [BDS].) To the extent that the Proof of Service as to Defendant Sampson should be incorporated into the analysis of service on the corporation, that Proof of Service is deficient for the reasons stated above. The Court therefore finds that service was also not valid as to Defendant BDS, Inc.

Because the Court has found that service on both Defendants was invalid, the Court must set aside the default and default judgment as void. Plaintiff’s arguments regarding Defendant’s actual knowledge or the putative prejudice to Plaintiff are irrelevant where personal jurisdiction was not established for lack of proper service.

CONCLUSION:

Accordingly, Defendants’ Motion to Set Aside is GRANTED.

Defendants are ordered to file and serve a clean, standalone copy of their proposed Answer and Cross-Complaint within 10 days of this order.

Moving Parties to give notice.

IT IS SO ORDERED.

Dated:  May 28, 2025                                 ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@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.