Case Number: VC58656    Hearing Date: April 22, 2014    Dept: SEC

BUSICH v. MCCRAY
CASE NO.: VC058656
HEARING: 04/22/14

#2
TENTATIVE ORDER

Defendants GARY WILLIAMS and NATASHA HAYNES’s motion to (1) quash service, and (2) set aside the entry of default and default judgment is GRANTED in its entirety. C.C.P. § 473(d).

Plaintiff NICK BUSICH filed the subject action in May 2011, after he was allegedly involved in a fraudulent scheme pursuant to which he transferred title to certain real property. Entry of default against the moving defendants was filed September 20, 2012. Default judgment was filed January 18, 2013 in the amount of $5,432,722.82, which amount is inclusive of a $5 million punitive damages award.

Defendants Williams and Haynes seek to set aside the entry of default and subsequent judgment on the ground that they were not properly served with the summons and complaint. Defendants also seek to quash the service of summons, which was allegedly effected through publication in August 2012.

Defendants argue that the declarations submitted in support of plaintiff NICK BUSICH’s application to serve by publication were insufficient insofar as they did not evidence sufficient attempts to effect service by other means. See C.C.P. § 415.50. The Court has reviewed the evidence and finds that plaintiff failed to act with reasonable diligence in his service attempts.

Plaintiff submitted an Affidavit of Non-Service, which indicates service was attempted on defendant Williams at 9869 Lime Tree St., Las Vegas, NV on 4 separate occasions in November 2011. The process server Martin Druckman included notes that an (unnamed) neighbor residing at 9865 Lime Tree Street indicated that he had not seen anyone coming or going at the house for a long time and packages often sat for days before retrieved. Opp., Exh. A. The Court notes that those attempts were not made with respect to defendant Haynes.

Defendants (husband and wife) each submitted a declaration stating they resided at the Lime Street address in November 2011. They also submitted declarations from several of their neighbors who each attest to seeing defendants at that address throughout the relevant time period. See Decl. of Nickel Lowman, Vamessa Marquez, Kelly Brady. John Demaggio, who resides at 9865 Lime Tree Street, denies ever speaking with the process server (contrary to the Druckman declaration).

Plaintiff’s counsel’s November 2011 declaration also indicates that he attempted to email defendant Williams a copy of the summons and complaint in November 2011 and that he mailed copies to each defendant “to the last known addresses which we have.” Orloff decl., ¶6. Exhibit D shows one service attempt on Williams at a 7126 W. Alaska Dr., #121, Lakewood, CO address (for defendant’s corporation Nimbus Resources Group, Inc., which is separately named as a defendant). That proof of service states that such address appears to have been a bad address. Despite the indication that the address was “vacant” and “no longer in business,” plaintiff mailed a copy of the summons and complaint to that same address, on both Williams and Haynes, in March 2012. Counsel’s declaration indicates they came back as undeliverable. That service appears to be the only attempt made on defendant Haynes, as all of the other proofs are directed at defendant Williams.

The Court notes that counsel Orloff mentions in his declaration two known addresses in Nevada, but provided evidence of a service attempt only at the Lime Tree Street address.

For the reasons set forth above and in light of the strict compliance requirement of section 415.50, the Court finds that plaintiff’s evidence of diligence was insufficient to support an order for service by publication. See Katz v. Campbell Union High School Dist. (2006) 144 Cal.App.4th 1024.

Because the service of summons was invalid, the resulting entries of default and default judgment are void. See Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295.

As noted in the moving papers, the judgment itself is subject to challenge because the amount is excessive (particularly with respect to the award for punitive damages). The Court need not reach that issue, however, because the judgment is set aside.