Case Number: BC516166 Hearing Date: April 05, 2018 Dept: 97

Superior Court of California
City of Los Angeles
Department 97

Kermat Aghbala,

Plaintiff,

v.

Olga Moiseyeva, et al.,

Defendants.

Case No.: BC516166

Hearing Date: April 5, 2018

[TENTATIVE] order RE:

Defendant Richard Shaw’s MOTION to Quash Service of Summons and Vacate Default Judgment

BACKGROUND

This case arises out of a dog bite sustained by Plaintiff Kermat Aghbala (“Plaintiff”). Plaintiff filed the Complaint on July 24, 2013 naming Olga Moiseyeva, Albert Finkelshtein, and Inessa Finkelshtein as defendants. Defendant Richard Shaw (“Defendant”) was added to this case as a defendant by Doe Amendment filed on July 13, 2016. On December 29, 2016, Plaintiff filed a proof of service attesting to personal service of the summons and complaint on Defendant on December 27, 2016 at 8:05 am. On February 15, 2017, Plaintiff served a request for entry of default on Defendant by mail. On February 16, 2017, Plaintiff filed the request for entry of default, and the Clerk entered Default against Defendant.

On May 10, 2017, Plaintiff served a Request for Default Judgment on Defendant by mail. On June 27, 2017, the Court entered default judgment against Defendant for $57,134.00 damages and $495.00 costs, for a total of $57,629.00. Plaintiff never filed any proof of service to demonstrate service of the default judgment on Defendant.

On January 26, 2018, Defendant filed the instant motion to vacate the default judgment and quash service of process of the summons and complaint on the grounds that he was never served. Defendant moves to vacate the judgment under Code of Civil Procedure sections 473(d) and 473.5. Plaintiff opposes the motion.

At the March 8, 2018 hearing, the Court heard testimony from Mauricio Gonzales, Defendant Richard Shaw, and Chris Jordan. The Court then ordered the parties to provide supplemental briefing addressing the adequacy of service of the Summons and Complaint on December 27, 2016 and the adequacy of service of the Statement of Damages on February 12, 2017 in light of the witnesses’ testimony on March 8, 2018. Plaintiff filed a supplemental brief on March 16, 2018. Defendant did not file any supplemental briefing.

LEGAL STANDARD

CCP section 473.5 permits the Court to vacate a default judgment “[w]hen 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.” The phrase “actual notice” means “genuine knowledge of the party litigant” and does not include imputed notice to the client. (Tunis v. Barrow (1986) 184 Cal.App.3d 1069, 1077.) Relief must be sought no later than two years after entry of the default judgment or 180 days after notice of entry of default judgment is provided, if given. (CCP § 473.5(a).)

Courts have broad discretion to grant § 473.5 relief against default, and it is only in cases where a lower court abuses its discretion that a reviewing court will reverse the action of the lower court. (Thompson v. Sutton, supra, 50 Cal.App.2d at p. 276.) This does not mean, however, that relief must be granted whenever the defendant denies receiving actual notice. (Pierson v. Fischer (1955) 131 Cal.App.2d 208, 212 [statute providing for relief from default does not require relief in all cases but is left “to the judicial discretion of the trial court”].) To the contrary, where the evidence is in conflict and “[t]he trial court could reasonably conclude the [defendants] had actual notice in time to defend,” the trial court has discretion to deny the motion for relief from default. (Ellard v. Conway (2001) 94 Cal.App.4th 540, 548.)

Under CCP § 473(d) “the court may, upon motion of the injured party, or its own motion . . . set aside any void judgment or order.” A “default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 387.)

Generally, relief pursuant to CCP section 473(d) may be made at any time. (See Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.) However, where a judgment is valid on its face but is nevertheless deemed void after considering evidence beyond the judgment, the motion must be brought within the same time as a motion brought under CCP section 473.5. (See Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1122-26.) CCP section 473.5 provides that relief must be sought within 2 years of the default judgment or 180 days after service of written notice that the default or default judgment has been entered, whichever is earlier. (Code Civ. Proc., § 473.5.)

“When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.’” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.) A proof of service containing a declaration from a registered process server invokes a presumption of valid service that must be overcome by the party seeking to defeat service of process. (American Express Centurion Bank v. Zara, s199 Cal.App.4th 383, 390. See also Evid. Code § 647.) However, if the process server is not registered, then proof by affidavit alone will not suffice, and the plaintiff must “produce the person who served the notice to testify to the facts of service.” (Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1427.)

A plaintiff must properly serve the summons and complaint on the defendant; actual notice of the action is not itself a valid substitute for proper service of process and will not confer jurisdiction over defendant when there has been a complete failure to comply with the statutory service of process requirements. (American Express Centurion Bank v. Zara (2011) 199 CA.4th 383, 392; Dill v. Berquist Const. Co., Inc (1994) 24 CA.4th 1426, 1439.) Without valid service of summons, the court never acquires jurisdiction over the defendant.

Testimony at the march 8, 2018 Hearing

A. Mauricio Gonzalez’s Testimony

At the March 8, 2018 hearing, Mauricio Gonzalez testified as follows:

At 8:05 AM on December 27, 2016, he went to the dwelling located at 19539 Nashville Street, Northridge, CA 91326 (“the Nashville Street address”) and rang the doorbell. Gonzalez waited approximately five minutes, but there was no answer. Gonzalez went to the garage for about a minute and then returned to the front door of the residence where he rang the bell again. Gonzalez could hear that someone was inside the residence. Gonzalez announced that he was looking for Richard Shaw. A male voice from inside the residence identified himself as “Richard Shaw.” Gonzalez told the male that he needed the individual to open the door because Gonzalez had a summons and complaint to deliver for a court case. The male voice responded, “I’m not going to take them. Just leave them at the door.” Gonzalez testified that the male voice he heard on December 27, 2016 is similar to the voice of defendant Richard Shaw who appeared at the March 8, 2018 hearing. Because the individual never opened the door, Gonzalez never saw the person on the other side of the door. Gonzalez only spoke with a male voice coming from inside the house. Gonzalez never handed the summons and complaint or any other documents to the person with whom he was speaking. Instead, Gonzalez left the summons and complaint and other documents outside the door.

Gonzalez further testified: Approximately three days after the events described above, Gonzalez returned to the same residence and knocked again. This time, however, nobody responded, and Gonzalez did not speak with anybody.

When asked whether he ever returned to the Nashville residence after this second visit to the Nashville Street address, Gonzalez initially testified that he never went back to serve any other papers at this residence. However, when Gonzalez was shown the proof of service of the Statement of Damages filed on February 16, 2017, Gonzalez testified that he now remembered that he did in fact return to the Nashville Street address on another occasion. With regard to service of the Statement of Damages, Gonzalez went to the Nashville Street address at the date and time identified in the proof of service filed with the Statement of Damages on February 16, 2017. Gonzalez rang the doorbell. Nobody opened the door. However, Gonzalez again spoke with a voice from within the residence. Gonzalez announced that he was looking for Richard Shaw. The voice inside the residence did not identify himself. Gonzalez stated, “I have documents to leave here with you. Can you please open the door?” The voice responded, “No. Just leave it at the door.” Gonzalez does not know with whom he was speaking on this occasion. Gonzalez asked the individual for his name, but the individual from inside the residence never identified himself. Nor did the individual ever open the door, and thus, Gonzalez never saw him. When asked why the proof of service for the Statement of Damages filed on February 16, 2017 indicates delivery “by mailing,” Gonzalez responded that it is usually his practice when he leaves paperwork at a location like this to also mail a copy of the paperwork to the same address.

B. Defendant Richard Shaw’s Testimony

At the March 8, 2018 hearing, defendant Richard Shaw (“Defendant”) testified as follows:

The Nashville Street address is his brother ‘s residence and was his brother’s residence in December 2016 and February 2017. Defendant gave the realtors’ association this address to list as his mailing address when he last registered for his real estate agent license, which he is required to do every five or six years. Defendant has received mail at his brother’s residence but has never lived there. Defendant’s brother, who is one year younger, could have a voice that is similar to Defendant’s voice although Defendant personally does not think that their voices are very similar.

Since approximately April 2016, Defendant has been living with his friend Chris Jordan. Defendant spent Christmas, December 25, 2016, with his girlfriend and drove her home the next day, on December 26, 2016. The following day, December 27, 2016, Defendant went golfing with his friend Chris Jordan. The course where Defendant and Chris Jordan golf is a public course. They usually pay the greens fee (a little over $20) by cash.

Defendant first heard about this lawsuit from a woman he knows by the name of Olga. Olga told Defendant that she had been sued and asked whether Defendant could serve as a witness on her behalf. Defendant did not learn that he was named as a defendant in this lawsuit until his brother at some point told him that he had received slip advising him to go to the Post Office to sign for some mail. Defendant went to the Post Office and picked up the papers, which is how Defendant learned that he was being sued in this case. Defendant thinks that this occurred in March or April 2017.

C. Chris Jordan’s Testimony

Chris Jordan testified at the March 8, 2018 hearing as follows:

Defendant and Jordan are friends. Defendant has been living with Jordan for close to two years; as of May 2018, they will have been living together for two years. Defendant and Jordan have been golfing for together for 5 to 6 years at the same course, approximately 1 to 2 times per month. Usually, they do not make reservations but instead call in advance to make sure that the course is not too busy. Defendant and Jordan usually pay the greens fee (approximate $25) in cash, or sometimes, by credit card. Jordan recalls spending Christmas, December 25, 2016, at Defendant’s brother’s house. Jordan also specifically recalls playing golf with defendant on December 27, 2016 from 8 AM through 4 PM because it was two days after Christmas. Defendant and Jordan had wanted to golf immediately after Christmas, but they did not play on December 26 because the golf course would have been too busy. They waited until the next day, December 27, 2016, — two days after Christmas to golf together.

DISCUSSION

Defendant argues that the default judgment against him is void because of improper service of process. At the outset, the Court notes that Defendant’s motion is timely under both CCP § 473.5 and § 473(d) as it was filed less than two years after entry of default judgment.

The proof of service executed by Mauricio Gonzalez, who is not a registered process server, attests that Defendant was personally served on December 27, 2016 at 8:05 am at his business address of 19539 Nashville St., Northridge, CA 91326.[1] The statement of damages was also purportedly served by Mr. Gonzalez on February 12, 2017.

Plaintiff provided the declaration of Mr. Gonzalez in opposition to the motion. However, pursuant to Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1427, if the process server is not registered, then proof by affidavit alone will not suffice, and the plaintiff must “produce the person who served the notice to testify to the facts of service.” Therefore, the Court required that Mr. Gonzalez appear at the March 8, 2018 hearing and testify to the service on Defendant. Mr. Gonzalez did so appear and stated that he served the summons and complaint at Defendant’s mailing address on December 27, 2018 and that a voice behind the closed door of the residence identified himself as “Richard Shaw.”

Plaintiff argues that this constitutes proper service. In the supplemental briefing, Plaintiff cites to two cases to support that Mr. Gonzalez’s service was proper. First, Plaintiff cites Khourie, Crew & Jaeger v. Sabek, Inc. (1990) 220 Cal.App.3d 1009. In Khourie, the process server attempted to effect service on a corporation. (Id. at 1011-1012.) The process server went to the corporation’s place of business to serve its agent, but the door was locked. (Id. at 1012.) A woman responded when the server rang the doorbell. The woman refused to state her name or unlock the door. She also refused to accept the papers. The server left the papers at the door and testified that “She was watching as I placed the documents just outside the door.” (Ibid.) The process server then mailed a copy of the summons and complaint to the corporation. (Ibid.) The corporation never filed a motion to quash service, but the Court of Appeals held that this service was enough to put the corporation on notice of default proceedings and therefore upheld the trial court’s order to deny the motion to vacate. (Id. at 1015.)

Next Plaintiff cites the case In re Ball (1934) 2 Cal.App.2d 578. In Ball, a process server approached a man that the server had previously served in another matter. (Id. at 578.) The server told the man that he had more papers for the man and then attempted to hand the papers to the man. (Id. at 579.) The man did not take the papers but let them drop to the ground. (Ibid.) The Court of Appeals held that “[w]e take it that when men are within easy speaking distance of each other and facts occur that would convince a reasonable man that personal service of a legal document is being attempted, service cannot be avoided by denying service and moving away without consenting to take the document in hand.” (Ibid.)

The cases on which Plaintiff relies are distinguishable from the instant case. Khourie is distinguishable for three reasons: (1) the attempted service was on a corporation, for which different rules for service of process apply than for individuals; (2) the process server saw the person with whom he was speaking when service was effectuated, and (3) the corporation never moved to quash the service of process. Ball is distinguishable for two reasons: (1) the process server knew the man from a prior service, and (2) the server saw the man when he attempted to hand him the service. Here, by contrast, Mr. Gonzalez had no prior knowledge of what Defendant looked like or sounded like, and Mr. Gonzalez never laid eyes on the person with whom he was speaking. Thus, Mr. Gonzalez could not identify, with any reasonable degree of confidence, the individual whom he attempted to serve on December 27, 2016. Therefore, Kourie and Ball are inapplicable.

At the hearing, there were some issues that affected Mr. Gonzalez’s credibility. Mr. Gonzalez testified that he served Defendant on December 27, 2016. Yet, Mr. Gonzalez also stated that he went back to the same house three days later and knocked again, but no one was home on that occasion. If Mr. Gonzalez was certain that he had properly served Defendant on December 27, 2016, it is unclear why Mr. Gonzalez felt a need to return three days later to attempt service again. Mr. Gonzalez’s apparent lack of confidence himself as to the sufficiency of the service attempt on December 27, 2016 undermines confidence that service had been properly effected on December 27, 2016. In addition, Mr. Gonzalez initially testified that he never returned to the residence after this second visit. However, when shown the proof of service for the statement of damages, Mr. Gonzalez stated that now he remembered that he did in fact return to the same house to serve the statement of damages upon Defendant.

Credibility issues aside, even if the Court were to assume that Mr. Gonzalez testified completely truthfully at the March 8, 2018 hearing, the events Mr. Gonzalez himself described do not demonstrate that Defendant was properly served with the summons and complaint. Plaintiff has failed to identify a single case analogous to the instant one where the identity of the individual on whom service was attempted remains uncertain. The problem for Plaintiff is that because Mr. Gonzalez never saw that individual with whom he was speaking, he could not identify that individual with any degree of reasonable certainty. At best, Mr. Gonzalez described speaking with a male who self-identified as Defendant. However, Plaintiff never successfully refuted Defendant’s testimony and Mr. Jordan’s testimony at the March 8, 2018 hearing. Mr. Jordan was excluded from the courtroom during Mr. Gonzalez’s testimony and during Defendant’s testimony. Nonetheless, Defendant and Mr. Jordan both testified, quite consistently with each other, that they were playing golf at the time that the service was purportedly attempted on December 27, 2016. Notably, the only evidence before the Court is that Defendant was using the Nashville Street as a mailing address but was not living at that residence or working there at the time. Given the early morning hour of the attempted service, there is no reason to presume that Defendant was at his brother’s house (where Defendant did not reside) at the time. The testimony of Mr. Jordan was particularly credible and corroborated Defendant’s assertion that he was not at his brother’s house when service was attempted there. Accordingly, the Court finds that Plaintiff has failed to meet Plaintiff’s burden to demonstrate that Defendant was personally served on December 27, 2016.[2] Accordingly, the Court must grant Defendant’s motion to quash service and Defendant’s motion to set aside the default and default judgment.

The Court also finds that the default and default judgment must be vacated on the additional grounds that Plaintiff has failed to demonstrate that the statement of damages was properly served prior to entry of default. Code of Civil Procedure section 425.11(d)(1) requires that “[i]f a party has not appeared in the action, the statement [of damages] shall be served in the same manner as the summons and complaint,” and pursuant to CCP section 425.11(c)(1), a plaintiff must serve the statement of damages on the defendant before a default may be taken. Mr. Gonzalez testified that on February 12, 2017, Mr. Gonzalez went again to the Nashville address in an attempt to serve the Statement of Damages on Defendant. This time, a voice behind the door refused to identify himself and also refused to open the door. Therefore, there is no evidence at all as to the identity of the individual with whom Mr. Gonzalez spoke on February 12, 2017. There is again no reason to presume that it was Defendant on the other side of the door on this occasion. Based on the evidence before the Court, the Court cannot conclude that Plaintiff properly served the statement of damages on Defendant prior to entry of default, as required by Code of Civil Procedure section 425.11(d)(1) and 425.11(c)(1).

Finally, the Court notes that in conjunction with the opposition, Plaintiff has filed an Exhibit 3, a print out from an internet website for the State of California Bureau of Real Estate. The exhibit has not been properly authenticated. The Court may not take judicial notice of images or documents pulled from the Internet, without additional, confirming support for their authenticity. (See Huitt v. Southern California Gas Co. (2010) 188 Cal.App.4th 1586, 1605, fn. 10 [“Simply because information is on the Internet does not mean that it is not reasonably subject to dispute.”]; Ragland v. U.S. Bank Nat. Assn. (2012) 209 Cal.App.4th 182, 194 [“Nor may we take judicial notice of the truth of the contents of the Web sites and blogs, including those of the Los Angeles Times and Orange County Register. . . The contents of the Web sites and blogs are ‘plainly subject to interpretation and for that reason not subject to judicial notice. [Citation omitted]’].) Plaintiff was told to address this issue at the hearing but did not do so. Therefore, the Court denies the request to take judicial notice of Exhibit 3. In any event, Exhibit 3 establishes at most that Defendant listed the Nashville residence as a mailing address – not as a residence or office address – for his real estate license.

Conclusion and Order

Based on the foregoing, the Court finds that the summons and complaint were not properly served on Defendant, and thus, the Court hereby grants Defendant’s motion to quash and motion to vacate default and default judgment. Plaintiff must properly serve the Summons and Complaint on Defendant. The Court further finds that the statement of damages was also not properly served on Defendant prior to entry of default, which provides a further basis for the Court to grant the motion to vacate the entry of default and default judgment.

The trial date is reset in the matter for June 22, 2018 at 8:30 am, and the Final Status Conference is reset for June 8, 2018 at 10:00 am. For the trial and for all future hearings after April 13, 2018, the parties are ordered to appear at the Court’s new location effective April 16, 2018: 312 North Spring Street, Department 5, Los Angeles, CA 90012.

Plaintiff is ordered to provide notice of this order.

DATED: April 5, 2018 ___________________________

Elaine Lu

Judge of the Superior Court

[1] All subsequent service on Defendant was made to this address.

[2] Although Defendant admitted at the March 8, 2018 hearing that he uses his brother’s residence — where Mr. Gonzalez attempted to serve the papers – as his mailing address, Plaintiff does not argue that this service was proper as substitute service. Even if such an argument was made, the record does not support a finding that the process server made the correct inquires to determine that substitute service could be made on the individual behind the door. Nor did Plaintiff ever attach any declaration of diligence setting forth attempts at personal service prior to December 27, 2016.