2014-00158443-CL-CL

Portfolio Recovery Associates, LLC vs. Peter L. Tran

Nature of Proceeding: Motion to Set Aside

Filed By: Tran Peter

Defendant Peter Tran’s “objection to the notice of default, and/or motion to set aside
entry of default” is denied.

Defendant moves to set aside default and/or to obtain an order directing the clerk not
to enter default on the sole basis that any default would be void because he was not
personally served pursuant to CCP § 415.10.

Here, to the extent that Defendant seeks to set aside the default, the motion is
premature. While Defendant states that he has been served with a request for entry of
default, the Court’s records do not show that any default has been entered or even
that a request for entry of default has been filed . In any event, as seen below,
even if a default had been entered, there is no basis to set aside a default or to order
the clerk to not enter an as yet unfiled request for entry of default.

In Defendant’s motion, he makes clear that his roommate told him than an individual
left the summons and complaint outside the door of his residence and also that he
received a copy of the summons and complaint in the mail a few days later.
Defendant’s only argument is that because he is an individual, the only way he could
be properly served is if he were personally served pursuant to CCP § 415.10. He
reasons that substitute service is only permissible when serving businesses and other
organizational entities pursuant to CCP § 415.20(a). He asserts that because he does not fit within the definition of any entity described in CCP § 415.20(a), Plaintiff was not
permitted to serve him by substitute service. Defendant is wrong. CCP § 415.20(b)
permits substitute service on individuals when personal service cannot be
accomplished with reasonable diligence. In reply, Defendant argues that CCP §
415.20(b) is inapplicable because that subdivision only allows substitute service on
specific types of individuals, e.g., those described in CCP §§ 416.60 (minors), 416.70
(persons for whom a guardian has been appointed) 416.80 (service under provisions
of the Elections Code) and 416.90 (persons not otherwise specified) and he does not
fit within any of those categories. Again, Defendant is wrong. CCP § 416.90 refers to
a “person not otherwise defined in this article” e.g., an individual defendant. Case law
is clear that individual defendants may be served by substitute service. “Another
alternative available for serving individual defendants is what is commonly known as
‘substitute service.’” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4
th 383, 389 [emphasis added].)

Thus contrary to Defendant’s argument, Plaintiff was permitted to serve him by
substitute service under CCP § 415.20(b) provided that personal service could not be
accomplished with reasonable diligence. Other than arguing that he was required to
be personally served, Defendant makes no argument that Plaintiff did not exercise
reasonable diligence prior to serving him by substitute service, or for example, that the
summons and complaint were not left with a competent member of his household. In
any event, Plaintiff has shown that it properly served Defendant by substitute service
pursuant to CCP § 415.20(b). As pointed out by Plaintiff in opposition, and
unchallenged by defendant, the proof of service of the summons and complaint in the
Court’s file (ROA #6) shows that Plaintiff’s process server attempted to personally
serve Defendant on four separate occasions between February 28, 2014, and March
11, 2014, at various times, at the address where Defendant concedes he resides
(indeed he list that address on his pleading). “Two or three attempts to personally
serve a defendant at a proper place ordinarily qualifies as ‘reasonable diligence’.” (
th
American Express Centurion Ban k, supra, 199 Cal.App.4 at 389.) The process
server then served Defendant by substitute service at that same address on March 17,
2014. The process server’s due diligence declaration on the proof of service indicates
that on March 17, a co-resident indicated that Defendant was asleep and that the co-
resident tried to get Defendant to wake up but he would not. The co-resident did not
want to take the papers and the process server told her that Defendant was being sub-
served and that the papers were left on the screen door. The co-resident said “OK.”
The process server then mailed a copy of the summons and complaint to Defendant
via first class mail at the address where the summons and complaint were left as
required by CCP § 415.20(b). Defendant was properly served by substitute service
pursuant to CCP § 415.20(b).

In sum, Defendant failed to show that he was not properly served with the summons
and complaint. Again, however, the Court notes, that its files do not reflect that a
default has been entered in this case.

The motion is denied.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or other notice is required.