Filed 4/22/20 Bowen v. Farron CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(El Dorado)

—-

RICHARD BOWEN,

Plaintiff and Respondent,

v.

GREGORIO PABLO FARRON,

Defendant and Appellant.

C089083

(Super. Ct. No. PC20170200)

Defendant and appellant Gregorio Pablo Farron appeals an order denying his motion to set aside a default entered in favor of plaintiff and respondent Richard Bowen. Farron argues the default and an ensuing default judgment are void for lack of personal jurisdiction under Code of Civil Procedure section 473, subdivision (d), as there was evidence service of the summons and complaint may not have been accomplished. Specifically, he argues the trial court erred in finding he was served by substitute service and compounded the error by denying his request for an evidentiary hearing on the issue. We disagree, finding that substantial evidence supports the trial court’s determination that Farron was properly served by substitute service. We therefore affirm the order denying the motion to set aside the default.

I. BACKGROUND

Bowen sued Farron on May 4, 2017, for personal injuries arising from an alleged assault. Mike Singh, a registered process server, filed a proof of service on June 8, 2017. The proof of service avers under penalty of perjury that Singh served Farron with copies of the summons and complaint (along with other papers) by substitute service at an address in Pollock Pines at 4:27 p.m. on the afternoon of May 23, 2017. Specifically, the proof of service avers that Singh left copies of the summons and complaint “with or in the presence of: JOHN DOE, RESIDENT, White, Male, 50 Years Old, Salt & Pepper Hair, 5 Feet 8 Inches, 165 Pounds.”

The proof of service was accompanied by an affidavit of reasonable diligence, also signed under penalty of perjury, indicating that Singh had attempted service on Farron at the Pollock Pines address on six previous occasions. The affidavit describes the property as locked and gated, with a house set back approximately 40 feet from the street. The affidavit avers that Singh observed a silver Toyota pick-up truck on the property on each of his attempts to effect service of process there. On his last attempt, the affidavit says, Singh observed a man unloading things out of the truck. According to the affidavit, the man refused to come to the gate to accept service of process. Consequently, the affidavit avers, Singh “ANNOUNCED THE SERVICE AND LEFT THE DOCUMENTS AT THE GATE.”

The proof of service was accompanied by a proof of service by mail indicating, again under penalty of perjury, that copies of the summons and complaint had been mailed to Farron at the Pollock Pines address on May 24, 2017.

Farron failed to answer or otherwise respond to the complaint. The court clerk entered Farron’s default on July 5, 2017.

Farron filed a motion to set aside the default on September 13, 2017. The motion argued the default was void for lack of personal jurisdiction due to improper service under section 473, subdivision (d). The motion was accompanied by a declaration from Farron denying that he received copies of the summons and complaint through substitute service or U.S. mail.

The declaration acknowledges that Farron owns and resides at the Pollock Pines address. The declaration also acknowledges that Farron owns a silver Toyota pick-up truck. However, the declaration denies that Farron was home on the afternoon of May 23, 2017, when Singh claims to have effected substitute service. The declaration avers that Farron was working an evening shift approximately 13 miles away at the relevant time. The declaration further avers that Farron drove the silver pick-up truck to work that day, and was parked in his employer’s parking lot at the time substitute service was said to have been effected. The declaration further avers that no one else lives at the Pollock Pines address, and no one else has access to the locked, gated property or the silver pick-up truck.

Bowen opposed the motion to set aside the default. The opposition was supported by declarations from Bowen, Bowen’s counsel, and Singh, each of which attached the same recent photograph of Farron. Together, the declarations averred that the photograph had been taken by Bowen and given to the process service company (and later, Singh) at the request of Barron’s counsel.

Singh’s declaration avers that he received the assignment to effect service of process on Farron at the Pollock Pines address on May 5, 2017. Whereas the affidavit of diligence recites six unsuccessful attempts to effect service of process on Farron at the Pollock Pines address, the declaration focuses on only one such attempt. According to the declaration, Singh arrived at the Pollock Pines property on May 20, 2017, and observed two men loading a Toyota pick-up truck. The declaration avers that Singh asked for Farron and was told by the men that Farron did not live there, and they did not know him. The affidavit of diligence, by contrast, makes no mention of two men, but avers only that the gate was closed and locked, there were dogs on the property, and the silver pick-up truck was present.

The declaration avers that Singh received and reviewed the photograph of Farron two days later, on May 22, 2017. According to the declaration, Singh recognized Farron as one of the men he spoke with on May 20, 2017.

The declaration avers that Singh returned to the Pollock Pines address on May 23, 2017. According to the declaration: “I arrived at the premises at 4:27 pm, the gate was closed, I honked and rattle[d] on the gate, after [a] few minutes a gentleman came out of the house and I asked for [Farron], the gentleman replied: You were told that he do not live here. I said to him that I have verified that [Farron] lives here and I have some legal papers for him and if he does not come out to receive the legal papers, I will leave it with you. The gentleman refused to accept the documents and give me his name. I left the documents over the fence.” The declaration does not specify whether the “gentleman” that Singh spoke with on May 23, 2017, was the same as the man he spoke with on May 20, 2017 (whom he identified as Farron).

Farron filed a reply to the opposition, arguing that Singh’s affidavit of reasonable diligence is inconsistent with his subsequent declaration, and the asserted inconsistencies raise doubts as to whether service was actually accomplished. The reply requested an evidentiary hearing to present additional evidence that Farron was at work at the time service was said to have been effected.

The trial court heard argument on the motion to set aside the default on October 26, 2017. In anticipation of the hearing, the trial court issued a tentative ruling denying the motion and stating, in part, that “the court finds under the totality of the circumstances that the most credible evidence establishes that the summons and complaint were left with a competent member of the household, who was seen by a registered process server to have exited the home despite [Farron] stating that no one lives with him or has any access to his home.” The tentative ruling also denied Farron’s request for an evidentiary hearing.

Following argument, the trial court took the matter under submission. On November 1, 2017, the trial court entered a minute order adopting the tentative ruling. On January 17, 2019, the trial court entered a default judgment against Farron in the amount of $309,508.64. This appeal timely followed.

II. DISCUSSION

A. Motion to Set Aside Default

Farron argues the trial court erred in denying his motion to set aside the default as void for lack of personal jurisdiction. Under section 473, subdivision (d), the court may “set aside any void judgment or order.” As relevant here, section 473, subdivision (d) empowers the court to “set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service.” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.) Farron argues the default and default judgment are void because there was evidence he may not have been properly served, and the trial court abused its discretion in denying the motion to set them aside on this basis. We disagree.

We review de novo the trial court’s legal determination as to whether entry of default and default judgment are void for lack of proper service of process. (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1200 [“Where the question on appeal is whether the entry of default and the default judgment were void for lack of proper service of process, we review the trial court’s determination de novo”].) We review the trial court’s factual findings for substantial evidence, deferring to the court’s resolution of disputed facts and assessment of witness credibility. (Ramos v. Homeward Residential, Inc. (2014) 223 Cal.App.4th 1434, 1441, fn. 5 (Ramos); see also Pope v. Babick (2014) 229 Cal.App.4th 1238, 1245-1246.) Nevertheless, our review is informed by the overall policy favoring disposition on the merits. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 256.) “Because the law favors disposing of cases on their merits, ‘any doubts in applying section 473 must be resolved in favor of the party seeking relief from default [citations]. Therefore, a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits.’ [Citations.]” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980.)

Section 415.20 authorizes substitute service of process in lieu of personal delivery. It provides: “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 address other than a United States Postal Service post office box, 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.” (415.20, subd. (b).)

Under section 415.20, “an individual may be served by substitute service only after a good faith effort at personal service has first been made: . . . Two or three attempts to personally serve a defendant at a proper place ordinarily qualifies as ‘ “reasonable diligence.” ’ ” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389.) Since the purpose of section 415.20 is to permit service to be completed upon a good faith attempt at physical service on a responsible person, service must be made upon a person whose relationship with the person to be served makes it more likely than not that they will deliver process to the named party. (Hearn v. Howard, supra, 177 Cal.App.4th at pp. 1202-1203.)

Here, as framed by the parties, the validity of substitute service boils down to a credibility contest between Singh, on the one hand, and Farron, on the other. Bowen filed a proof of service attesting that Singh left copies of the summons and complaint with a man, approximately 50 years old, who was unloading things out of a silver pick-up truck at the locked and gated property in Pollock Pines, following six unsuccessful attempts at the same address. The proof of service created a rebuttable presumption that service was proper. (Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795; Evid. Code, § 647.)

Farron attempted to rebut the presumption with a declaration attesting, in substance, that he was not home at the relevant time, and was not aware of anyone else who might have been present to receive service of process. Put another way, Farron challenged the factual basis for the substitute service, even as he admitted that he lived at the Pollack Pines address and drove the same make and color of vehicle that Singh reported seeing.

Bowen responded with a declaration from Singh elaborating that he saw two men at the Pollack Pines address on May 20, 2017, one of whom, later identified as Farron, falsely represented that Farron did not live there. Singh added that he saw a man come out of Farron’s house on May 23, 2017, who falsely replied, when asked about Farron, “You were told that he do not live here.” Thus, the motion to set aside the default presented the trial court with a purely factual issue, which turned on the credibility of Singh, on the one hand, or Farron, on the other.

The trial court found “under the totality of the circumstances” that Singh’s version of events was more believable than Farron’s, and credibly established that “the summons and complaint were left with a competent member of the household, who was seen by a registered process server to have exited the home despite [Farron] stating that no one lives with him or has any access to his home.” We cannot say the trial court abused its discretion in so finding. Singh’s declaration constitutes substantial evidence that the summons and complaint were left with a “gentleman” who emerged from Farron’s house on May 23, 2017, whether or not Farron himself was present. The trial court was entitled to rely on Singh’s declaration and could reasonably believe a registered process server would have little reason to fabricate an encounter with a man who emerged from the house on May 23, 2017, and refused to reveal his name or accept service of process. By contrast, the trial court could reasonably disbelieve Farron’s claim that no one could have been at the Pollock Pines address that afternoon, especially in view of Singh’s report that two men had been observed on the property days before, one of whom appears to have been Farron. The trial court could also reasonably doubt Farron’s veracity in light of Singh’s report that the men lied about knowing Farron. On the record before us, the trial court could reasonably conclude that Singh’s version of events was more worthy of belief than Farron’s.

Farron identifies various discrepancies between Singh’s affidavit of reasonable diligence and subsequent declaration, and questions left unanswered by both submissions. Of greatest significance, Farron notes the affidavit fails to mention the alleged encounter with Farron and another man on May 20, 2017, and the declaration fails to identify the man who emerged from the house on May 23, 2017, as Farron, the man from the earlier encounter, or someone else entirely. These purported inconsistencies and ambiguities do not undermine the trial court’s essential finding that the summons and complaint were left in the presence of a competent, albeit unidentified, member of the household, as required by section 415.20.

Farron argues the policy in favor of trial on the merits mandates reversal. He emphasizes that appellate courts scrutinize orders denying discretionary relief from default more closely than orders granting relief, and directs our attention to cases holding that doubts must be resolved in favor of granting relief (Ramos, supra, 223 Cal.App.4th at p. 1444) and “very slight evidence is required to justify a trial court’s order setting aside a default” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478 (Shamblin)). We have no quarrel with these authorities or the principles for which they stand. But we cannot agree with Farron’s suggestion that they require us to abandon our abuse of discretion standard of review where, as here, an application for relief is denied. Neither Shamblin nor Ramos so hold. To the contrary, Shamblin makes clear that “an appellate court should defer to the factual determinations made by the trial court when the evidence is in conflict. This is true whether the trial court’s ruling is based on oral testimony or declarations.” (Shamblin, supra, at p. 479.) Ramos, which relies on Shamblin, similarly states that, with respect to evidentiary matters, “our review is governed by the familiar abuse of discretion standard. [Citation.] That standard requires we defer to factual determinations made by the trial court when the evidence is in conflict, whether the evidence consists of oral testimony or declarations.” (Ramos, supra, at pp. 1440-1441, citing Shamblin, supra, at p. 479.) On the whole, these authorities merely confirm that the policy favoring trial on the merits does not supplant or displace our abuse of discretion standard of review, which requires a showing that the trial court’s decision was “ ‘so irrational or arbitrary that no reasonable person could agree with it.’ ” (See Mechling v. Asbestos Defendants (2018) 29 Cal.App.5th 1241, 1249 [affirming grant of equitable relief from default judgment]; see also McClain v. Kissler (2019) 39 Cal.App.5th 399, 416 [policy favoring trial on the merits does not require that courts “myopically focus on that policy alone and grant relief in every case or that courts should be unceasingly lenient with careless litigants”].)

Here, as we have suggested, the trial court was confronted with an inherently factual question—whether a competent member of the household was present to receive substitute service on May 23, 2017. That question, in turn, required the trial court to evaluate the credibility of Singh, who claimed a man emerged from Farron’s house to receive substitute service, and Farron, who claimed there could not have been any such person. We are required to defer to the trial court’s factual findings so long as they are supported by substantial evidence, which as we have demonstrated, they are. (See Shamblin, supra, 44 Cal.3d at pp. 478-479 [“When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court”].) We are also required to defer to the trial court’s evaluations of witness credibility. (Falahati v. Kondo (2005) 127 Cal.App.4th 823, 828 [“It is the province of the trial court to determine the credibility of the declarants and to weigh the evidence”].) Farron has not shown that the trial court’s factual findings or credibility determinations exceeded the bounds of reason. (Shamblin, supra, at p. 478 [“The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason”].) We must therefore conclude that the trial court did not abuse its discretion in finding that the summons and complaint were properly served on Farron by substitute service. Having so concluded, we must also conclude that the trial court did not err in denying the motion to set aside the default and default judgment for lack of personal jurisdiction pursuant to section 473, subdivision (d).

B. Request for Evidentiary Hearing

Next, Farron argues the trial court erred in denying his request for an evidentiary hearing. Again, we disagree.

Section 2009 empowers trial courts to determine civil law and motion matters on the basis of affidavits or declarations alone, without oral testimony. (§ 2009; Reifler v. Superior Court (1974) 39 Cal.App.3d 479, 483.) The California Rules of Court declare that evidence at a law and motion hearing “must be” presented by declaration or request for judicial notice, unless the court orders otherwise for good cause shown. (Cal. Rules of Court, rule 3.1306(a).) Under rule 3.1306(b), a request to introduce oral evidence at a law and motion hearing must state “the nature and extent of the evidence proposed to be introduced and a reasonable time estimate for the hearing.” We review a ruling with respect to the presentation of oral testimony on a motion for abuse of discretion. (California School Employees Assn. v. Del Norte County Unified Sch. Dist. (1992) 2 Cal.App.4th 1396, 1405.)

Here, Farron requested an evidentiary hearing to present “approximately one hour of evidence and testimony on proving [Farron] was at work on May 23, 2017, to include testimony from [Farron’s] supervisor.” The trial court reasonably concluded that the proffered testimony would not be relevant, as the court was prepared to assume for argument’s sake that Farron had been working at the time of the purported service. We have operated under the same assumption. We cannot say the trial court abused its discretion in denying Farron’s request to present unnecessary oral testimony concerning his whereabouts on the afternoon of May 23, 2017. To the extent Farron contends the trial court abused its discretion by depriving him of an opportunity to cross-examine Singh (a contention suggested by his opening brief and made explicit in his reply), we reject the contention on the ground that he failed to request such testimony in advance of the hearing on the motion, and therefore failed to comply with California Rules of Court, rule 3.1306(b).

III. DISPOSITION

The judgment and order are affirmed. Bowen shall recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

/S/

RENNER, J.

We concur:

/S/

RAYE, P. J.

/S/

BLEASE, J.