17-CIV-04853 S.J. AMOROSO CONSTRUCTION CO., INC. VS. JACOBO TADEO HERRERA, ET AL.

S.J. AMOROSO CONSTRUCTION CO., INC JACOBO TADEO HERRERA
MICHAEL M. LUM MICHAEL MARTIN

JACOBO TADEO HERRERA’S MOTION TO VACATE DEFAULT JUDGMENT TENTATIVE RULING:

Defendant Jacobo Tadeo Herrera dba Herrera General Engineering’s Motion for Order Vacating Default and Default Judgment is DENIED.

The motion is untimely under Code of Civ. Proc. § 473.5. The 180-day period runs from service of Notice of Entry of Default or Notice of Default Judgment. Code of Civ. Proc. § 473.5(a). Plaintiff served a Notice of Entry of Judgment on September 26, 2018, and Defendant filed this motion on October 29, 2019, after the 180-day time period expired.

Defendant also argues that service of the summons and complaint is improper. Relief from default or default judgment for improper service is governed by Code of Civ. Proc. § 473(d). The motion is timely under this statute. Service of the summons and complaint was proper here. Based on the facts set forth in the process server’s declaration filed April 4, 2018, Plaintiff exercised reasonable diligence in attempting personal service of the summons on Defendant prior to effectuating substitute service at his usual mailing address. Ellard v. Conway, 94 Cal. App. 4th 540, 545 (2001). Plaintiff properly served Defendant in his capacity as the owner of a sole proprietorship, California Shellfish Inc. v. United Shellfish Co., 56 Cal. App. 4th 16, 24 (1997), and the substitute service complied with the requirements of service under Code of Civ Proc. § 415.20. Defendant admits that the service address was the address where he received mail at the time of service in February 2018. The process server spoke to two people at the service address—a minor and plaintiff’s mother. Neither said that Defendant did not live there or receive mail there; to the contrary, the minor said that Defendant was “not home at this time” and Defendant’s mother accepted the service of the complaint and accompanying documents. Defendant provides no explanation why, while knowing that mail was being forwarded to his mother’s house, he never asked his mother if there was any mail from the time of service on February 20, 2018 until June of 2019, when he states his mother first told him of a “pile” of mail she had for him, a period of 15 months.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, co