PARMANAND KUMAR VS RODOLFO CERRILLO LOPEZ, INDIVIDUALLY

Tentative Rulings

Case Number: 17STLC02089    Hearing Date: October 24, 2019    Dept: 94

MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT

(CCP § 473(b), (d); § 473.5)

TENTATIVE RULING:

Defendant American Contractors Indemnity Company’s Motion to Set Aside Entry of Default and Default Judgment is GRANTED. ANSWER TO BE DEEMED FILED AS OF THE DATE OF THIS ORDER.

SUMMARY OF COMPLAINT: Action for breach of construction contract and related claims.

REQUEST FOR RELIEF: Set aside default judgment entered against ACIC on the grounds that it is void and service of the Summons and Complaint did not result in actual notice of the action.

OPPOSITION: The motion is untimely as it was not brought within six months of entry of default. Nor is the motion supported by evidence of any mistake, inadvertence or excusable neglect by Defendant.

REPLY: The motion is timely brought less than six months after the entry of default judgment. A void default or default judgment may be set aside under Code of Civil Procedure section 473.5. This is also permitted through a request for equitable relief. Defendant was not served with the Summons or Complaint, or the request for entry of default.

ANALYSIS:

On September 22, 2017, Plaintiff Parmanand Kumar (“Plaintiff”) filed this action against Defendants Rodolfo Cerrillo Lopaz, Rudy’s Mechanical Plumbing, and American Contractors Indemnity Company (“Defendant ACIC”). Plaintiff filed a proof of substitute service with respect to Defendant ACIC on November 30, 2017. On July 27, 2018, the Court entered default against Defendant ACIC. Default judgment was been entered against Defendant ACIC on October 29, 2018 in the amount of $12,500.00.

Defendant ACIC filed the instant Motion to Vacate Default and Default Judgment (“the Motion”) on June 4, 2019. Plaintiff filed his opposition on July 17, 2019 and Defendant ACIC replied on July 23, 2019.

Code of Civil Procedure section 473, subdivision (d)

“‘[A] void at any time [Citation.]” (Rockefeller Technology Investments (Asia) VII v. Changzhou Sinotype Technology Co., Ltd. (2018) 233 Cal.Rptr.3d 814, 829.) A trial court has the inherent power to set aside a judgment void on its face at any time.” (Connelly v. Castillo (1987) 190 Cal.App.3d 1583, 1588 (emphasis added).) If the judgment is not void on its face, the time limitations of Code of Civil Procedure section 473.5 apply. (See Schekel v. Resnik (1994) 27 Cal.App.4th Supp. 1, 3-4 (“[t[he Rogers court held that the time limitation set forth in Code of Civil Procedure section 473.5 applies by analogy to motions for relief from a default judgment valid on its face but otherwise void because of improper service” (citing Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1124).)

Defendant ACIC does not contend the judgment is void on its face. Rather, because it argues that the judgment is void for lack of proper service, the Court must consider whether the motion is timely under Code of Civil Procedure section 473.5. Code of Civil Procedure section 473.5, subdivision (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.

Here, there is no indication that notice of entry of default or judgment was served on Defendant ACIC. As default judgment was entered on October 29, 2018, the Motion was timely brought less than two years after entry of default judgment. Plaintiff filed a proof of substitute service of the Summons and Complaint that states the papers were served on Defendant ACIC through its Agent for Service of Process, Anna Noveman, on September 28, 2017. (Proof of Substitute Service, filed 11/30/17, ¶3.) Specifically, the proof of service states that the papers were left at 801 S. Figueroa Street, Suite 700, Los Angeles, California” with “Employee of the Defendant, female, fair skin, black hair, blak [sic] eyes, 5’-7” tall, 135 Lbs.” (Id. at ¶¶4-5.) The papers were thereafter mailed to the service address on the same date. (Id. at ¶5.) Notably, however, the papers were not served by a registered California process server, so the proof of service is not entitled a presumption of accuracy. (See Cal. Evid. Code, § 647.)

Defendant ACIC disputes that the Summons and Complaint were ever delivered to the service address as they were not logged by its staff or distributed to Noveman. (Motion, Noveman Decl., ¶¶13-16; Viramontes Decl., ¶¶2-5; Banderas Decl., ¶¶2-5.) It processes all legal papers delivered or mailed to the service office, first through a Licensing Assistant III, then through a Bond Claims Assistant II, and utlimately through Noveman. (Ibid.) All legal papers are logged and distributed according the bond at issue. (Ibid.) Noveman admits seeing a copy of the Summons and Complaint that were mailed in late September 2018; those papers were received on October 5, 2017. (Motion, Noveman Decl., ¶11.) However, those the papers were not addressed to her personally, or as the the agent for service of process. (Ibid.) Defendant ACIC also disputes receipt of any of the other filings in this action that were purportedly mailed to the service address. (Motion, Noveman Decl., ¶¶13-16; Viramontes Decl., ¶¶2-5; Banderas Decl., ¶¶2-5.)

Defendant ACIC has demonstrated that service did not substantially comply with the statutory requirements. Under Code of Civil Procedure section 415.20, subdivision (a), after delivery of the papers, they must also be mailed “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. (a).) Here, there is no dispute that the documents mailed to Defendant ACIC were not addressed to Noveman. Defendant ACIC thereafter informed Plaintiff that this attempt at service was improper and sought proof of service from him. (Motion, Noveman Decl., Exh. 3.) Plaintiff made no response to demonstrate that service was proper and that a response was required by Defendant ACIC. Plaintiff also incorrectly argues that mailing the papers to Defendant ACIC’s in-house counsel was sufficient service, without citing to any legal authority. (Opp., p. 5:5-16.)

Finally, Defendant ACIC has demonstrated the existence of a meritorious defense and filed a copy of its proposed Answer. Based on the foregoing, the Motion to Set Aside Entry of Default and Default Judgment is GRANTED.

Moving party to give notice.