Judge Thomas D. Long, Case Number: 23STCV20273, Date: 2024-07-09 Tentative Ruling

Defendant’s request for judicial notice is denied as unnecessary because the documents are already part of this case’s record.

“[I]f a defendant is not validly served with a summons and complaint, the court lacks personal jurisdiction and a default judgment in such action is subject to being set aside as void.” (Lee v. An (2008) 168 Cal.App.4th 558, 564.) The Court may also set aside a default or default judgment upon a motion and affidavit attesting that the lack of actual notice in time to defend the action was not caused by the party’s avoidance of service or inexcusable neglect. (Code Civ. Proc., § 473.5.) “If the court has acquired jurisdiction, i.e., summons has been served, but service of summons has not resulted in actual notice to a defendant, although the defendant has acquired actual knowledge of the action from another source, this does not preclude a defendant from seeking relief under section 473.5.” (Olvera v. Olvera (1991) 232 Cal.App.3d 32, 40.)

Plaintiff admits that Andrew “presents a plausible case” for relief because “he never received actual notice of the summons and complaint,” and Plaintiff is “agreeable to the relief he seeks” because “Defendant Andrew Hopp should not be made to suffer for the sins of the father.” (Opposition at pp. 5-6.) The motion is therefore granted for Andrew Hopp.

Substituted service requires leaving a copy of the summons and complaint either at the individual’s dwelling house or usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box. (Code Civ. Proc., § 415.20, subd. (b).) Plaintiff must also mail 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, subd. (b).)

According to the filed proofs of service, after two failed attempts at personal service, David and Andrew were served via substituted service via “Jane Doe” on September 20, 2023 at 3:30 p.m. and 3:31 p.m. at 123 South Robertson Boulevard B, Los Angeles, California 90048. The summons, complaint, and other documents were mailed via first class mail to the same address on September 29, 2023.

According to the filed proof of service, after two failed attempts at personal service, Youthfill was served via substituted service via “Jane Doe” on September 20, 2023 at 3:00 p.m. at 123 South Robertson Boulevard B, Los Angeles, California 90048. The summons, complaint, and other documents were mailed via first class mail to the same address the next day.

Both individual defendants contend that the service address is not their normal place of business. (D. Hopp Decl. ¶ 11; A. Hopp Decl. ¶ 5.) David’s normal office location is in Culver City, and he is at the service address approximately once every two weeks. (D. Hopp Decl. ¶ 11.) Andrew occasionally provides bookkeeping services for Youthfill, but he primarily works from home and has been at the service address only on a few occasions over a period of years. (A. Hopp Decl. ¶ 5.) No one ever provided them with the papers that were allegedly mailed to the service address. (D. Hopp Decl. ¶ 11; A. Hopp Decl. ¶ 5.) Plaintiff declares that when she was employed by Youthfill at the service location, David was “typically present at this location two to three times per week.” (Gonzalez Decl. ¶¶ 3-4.) The description of “Jane Doe” matches only Koko, the long-time receptionist. (Gonzalez Decl. ¶ 5.)

In reply, David clarifies that he “has never challenged—and does not now challenge—the validity of Plaintiff’s substitute service on him or Youthfill, or that Plaintiff’s process server mailed the Summons and Complaint to the Los Angeles Office for him and Youthfill.” (Reply at p. 10.) Instead, he contends that he was never personally served and was never actually provided with the summons and complaint. (Ibid.)

C. The Lack of Actual Notice Was Not Due to Avoidance of Service and Was Excusable, and David Acted Diligently Thereafter.

David declares that he “first learned of the above-captioned lawsuit on November 2, 2023 when one of my other attorneys notified me of its existence.” (D. Hopp Decl. ¶ 3.) The same day, he “reviewed the case docket online by searching [his] name on the Los Angeles Superior Court’s website,” reviewed the complaint, but did not review the summons or any of the Proofs of Service of Summons filed by Plaintiff. (D. Hopp Decl. ¶ 4.) David has shown that he did not have actual notice of this action until November 2, 2023.

David then attempted to contact Plaintiff’s counsel via fax and phone. (D. Hopp Decl. ¶¶ 4-5.) Plaintiff argues that David could not have faxed copies of documents because he does not have a fax number and has not used a fax machine for about twenty years. (Nichols Decl. ¶ 1; see D. Hopp Decl. ¶ 4.) He also never received a call or voicemail from David. (Nichols Decl. ¶ 2; see D. Hopp Decl. ¶ 5.)

After David’s November 2, 2023 actual notice of this action, David appeared at the Case Management Conference on December 21, 2023. Although this was after the entry of default against him (December 7, 2023), it was still before entry of default against Youthfill (March 6, 2024). “[I]t is now well-acknowledged that an attorney has an ethical obligation to warn opposing counsel that the attorney is about to take an adversary’s default.” (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 135 (Lasalle).) Upon seeing that David was attempting to appear and defend himself in this action, Plaintiff’s counsel had an ethical obligation to warn him, “the single manager of the LLC and the agent for service of process,” before taking Youthfill’s default. (See Nichols Decl. ¶ 5.) The motion is therefore granted for Youthfill.

David did not receive notice from Plaintiff about the continued Case Management Conference, so he “believed the March 11, 2024 CMC had been cancelled, and thus [he] did not appear at the March 11, 2024 CMC.” (D. Hopp Decl. ¶ 8.) He was delayed in retaining counsel because he suffered from an unexpected health issue and also was dealing with a serious family matter. (D. Hopp Decl. ¶ 8.) David contacted counsel in May 2024 and filed this motion on June 3, 2024. (D. Hopp Decl. ¶ 9.)

“[T]he law strongly favors trial and disposition on the merits,” and only very slight evidence is required to set aside an entry of default. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.) Plaintiff has not shown any prejudice if the default is set aside, “given the relatively short time between [Plaintiff] seeking the default and [Defendants] asking to be relieved from it.” (Lasalle, supra, 36 Cal.App.5th at pp. 138-139.) “‘When evaluating a motion to set aside a default judgment on equitable grounds, the “court must weigh the reasonableness of the conduct of the moving party in light of the extent of the prejudice to the responding party.”’ [Citation.]” (Id. at p. 139.) As in Lasalle, setting aside this default involves little wasted time.

The Court concludes that David did not have actual notice of this action until November 2, 2023, his lack of actual notice was excusable and not due to avoidance, and his delay in moving to vacate default was excusable. Accordingly, the motion is also granted for David Hopp.

The Motion to Set Aside/Vacate Default is GRANTED. The entries of default are VACATED.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court