Motion by Defendant Frank L. Ashley to Set Aside Default and to Quash Service of Summons by Plaintiff Julie Macchiarella

Plaintiff Julie Macchiarella alleges that she was retained by defendant Frank L. Ashley to perform certain credit rehabilitation, credit counseling, and other work from fall 2012 to May 2013, but Ashley failed to pay her as promised. On November 18, 2013, Plaintiff filed suit for intentional and negligent misrepresentation, breach of contract, breach of the implied covenant of good faith and fair dealing, quantum meruit, account stated, and promissory estoppel.

On December 4, 2013, Plaintiff filed a proof of service indicating that the summons, complaint, and associated documents had been served upon Ashley on November 23 at 1941 Freda Lane, Cardiff by the Sea, CA 92007 (the “Cardiff Address”) via substitute service upon a “housemate,” Adrienne Cooper. Ashley did not appear to defend this action, and default was entered by the clerk on January 13, 2014. Plaintiff filed a proof of service indicating that the request for entry of default was served upon Ashley on January 12, 2014, at the Cardiff Address, again by substitute service upon Ms. Cooper. On January 29, 2014, Plaintiff filed a notice of entry of default, along with a proof of service indicating that Ashley had been served with the notice at the Cardiff Address by mail.

On February 20, Ashley filed the current motion to set aside default and to quash service of summons.

Requests for Relief Under CCP Sections 418.10 and 473

Ashley seeks relief from default under Code of Civil Procedure (“CCP”) section 473 and moves to quash service of the summons and complaint pursuant to CCP section 418.10, subdivision (a)(1) on the grounds that service of the summons and complaint was invalid. The plaintiff bears the burden of proving valid service by a preponderance of the evidence in connection with any motion challenging the propriety of service. (See Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1440-1442.) In connection with this burden, “the filing of a proof of service creates a rebuttable presumption that the service was proper.” (Id. at p. 1441; see also Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1205.)

1. Substitute Service

The process server submitted a declaration of due diligence, in which he states that, on November 23, 2013, he made contact at the front door of the “Cardiff Address “with a male white adult, approximately 50 years old, 6’ tall, glasses, very short hair (no color) .” (Ex. C to Motion, Declaration of Due Diligence, ¶ 4.) A female who later identified herself as Adrienne Cooper approached and wanted to take notes about the paperwork the process server had, “even though Frank supposedly only rented a room from her a long time ago, had not seen him for a couple of years and he did not receive male [sic] there and probably would not be returning and did owe her money.” (Id.) The male subject would not identify himself or show identification, and Ms. Cooper stated that he was her husband. (Id.) The process server advised Ms. Cooper and the male subject that he believed the male subject might be Ashley, and since he now believed that Ms. Cooper was at least in contact with Ashley, Ms. Cooper could have the summons and complaint and Ashley would be served by substitute service. (Id.) Ms. Cooper protested and attempted to close the door, but took possession of the documents after the process server secured them in the security screen door. (Id.) The process server declares that “[t]he investigator’s information” suggested that Ashley lived at the Cardiff Address with Ms. Cooper, and further noted that Ashley is listed as an officer of a company called Seaside Payment Solutions, LLC at the same address. (Id.)

Ashley contends that Plaintiff’s attempt to serve him by substitute service was invalid because he does not reside at the Cardiff Address, and the process server made only one attempt at personal service at the Cardiff Address. Ashley declares that he did not learn of this lawsuit until attorney Ryan Anderson called him on January 8, 2014, and told Ashley that Plaintiff had contacted him regarding her intent to seek entry of default. (Ex. A. to Motion, Ashley Decl., ¶ 6.) Ashley declares that his permanent residence is located at 249 South Highway 101, #272, Solana Beach, California (the “Solana Beach Address”), where he has lived for over two years. (Ashley Decl., ¶ 3.) Ashley states that Plaintiff has known of this address for some time, and submits two letters he received from Plaintiff’s counsel at that address dated June 20. 2013, and June 28, 2013. (Ashley Decl., ¶ 12.) Ashley does not discuss his affiliation with the Cardiff Address where service was attempted or his relationship to Ms. Cooper or to Seaside Payment Solutions, LLC.

As an initial matter, Ashley failed to rebut the presumption established by the declaration of due diligence that the Cardiff Address was his usual place of business with Seaside Payment Solutions, LLC, and that Ms. Cooper was a person apparently in charge, because he did not address these issues in his declaration or his moving papers. (See Dill v. Berquist Construction Co., supra, 24 Cal.App.4th at p. 1441; Floveyor International, Ltd. v. Super. Ct. (Shick Tube-Veyor Corp.) (1997) 59 Cal.App.4th 789, 795; Evid. Code, § 647 [registered process server’s return of service establishes presumption of facts stated therein].) Further, Plaintiff submits an email with her opposition papers in which Ashley identifies himself as the CEO of Seaside Payment Solutions, LLC (Baker Decl., ¶ 3, Ex. A), and a page from the California Secretary of State web site listing the Cardiff Address as the address for this entity, with Ms. Cooper designated as the agent for service of process (Durt Decl., ¶ 5, Ex. A). Thus, the preponderance of the evidence also supports the conclusions that the Cardiff Address was Ashley’s usual place of business and that Ms. Cooper was a person apparently in charge. Consequently, valid substitute service was made at Ashley’s business address. (See Hearn v. Howard, supra, 177 at p. 1202 [substitute service at a private mailbox provided as the business address on defendant’s letterhead and as reported by the California State Bar was proper].)

Further, in light of the evidence submitted by Plaintiff establishing that the Solana Beach Address is for a UPS Store, the Court finds that Ashley did not reside there and that his declaration is not credible. (See Baker Decl., ¶¶ 3, 4, Ex. B; Durt Decl., ¶ 4; see also United States v. Perea-Rey (2012) 680 F.3d 1179, 1182, fn. 1 [“We take judicial notice of a Google map and satellite image as a ‘source[] whose accuracy cannot reasonably be questioned,’ at least for the purpose of determining the general location of the home.”].) Consequently, Ashley has not rebutted the presumption established by the declaration of due diligence that he resides at the Cardiff Address, and the preponderance of the evidence also establishes that this is his residence. Thus, valid substitute service was also made at Ashley’s residence.

Finally, Ashley also contends that substitute service was invalid because Plaintiff only made one attempt to serve him personally. However, based on the evidence discussed above, it was reasonable for Plaintiff to conclude that the Solana Beach Address was a UPS Store where it would not be possible to personally serve Ashley. In addition, given that Ms. Cooper denied that Ashley resided at the Cardiff Address and a man matching Ashley’s description refused to identify himself or to accept service there, it was reasonable for the process server to conclude that further attempts to personally serve Ashley at the Cardiff Address would be futile. In his memorandum of points and authorities, Ashley states, as if quoting from the declaration of due diligence, that the process server “was greeted at the door by [Ms. Cooper] and her husband, a man older than 70 years of age with a full grey beard.” (Motion, p. 4.) Ashley states that he “is 49 years old, has no facial hair of any kind, and has brown hair.” (Motion, p. 5.) The declaration of due diligence actually states that the process server encountered “a male white adult, approximately 50 years old, 6’ tall, glasses, very short hair (no color).” (Ex. C to Motion, Declaration of Due Diligence, ¶ 4.) Thus, the description of Ashley provided by the declaration of due diligence matches Ashley’s self-description. Plaintiff also submits an additional declaration by the process server in support of her opposition, in which the process server confirms that he attempted to serve Ashley by leaving the summons and complaint with Ms. Cooper and an approximately 50-year-old male white adult. (Huneycutt Decl., ¶ 5.)

Plaintiff was not required to exhaust all avenues of obtaining another address where personal service upon Ashley might be possible, and Ashley provides no other address at which he could have been personally served. Consequently, Plaintiff’s efforts to personally serve Ashley before resorting to substitute service were reasonable. (See Ellard v. Conway (2001) 94 Cal.App.4th 540, 545 [process server not required to continue futile attempts at personal service or to exhaust all avenues of obtaining a current address where personal service may be attempted]; Hearn v. Howard, supra, 177 Cal.App.4th at p. 1203 [“Here, as in Ellard, there was no indication that a better method of service was available to plaintiffs.”].)

2. Personal Service

Plaintiff also contends that Ashley was personally served at the Cardiff Address. As discussed above, the process server attempted to serve an individual matching Ashley’s self-description at an address that the preponderance of the evidence establishes was Ashley’s business and residential address. While Ashley denies receiving service, his declaration is not credible given that he also claims to reside at a UPS Store, and there is no other evidence in the record tending to show that the man to whom the process server spoke was someone other than Ashley. Consequently, the preponderance of the evidence also establishes that Ashley was personally served with the summons and complaint. (See Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1183 [personal service accomplished where evidence showed process server actually served the defendant by announcing drop service while attempting substitute service, although the proof of service indicated substitute service had been effected].)

Request for Relief Under CCP Section 473.5

Lastly, Ashley also seeks relief under CCP section 473.5, but, as discussed above, Ashley’s declaration does not demonstrate that he lacked actual notice or that his purported lack of notice was not caused by avoidance of service. Consequently, Ashley’s request for relief under this section is unsupported. (See CCP, § 473.5, subd. (b); Anastos v. Lee (2004) 118 Cal.App.4th 1314, 1319 [a party seeking relief under section 473.5 must provide an affidavit showing that his or her lack of actual notice in time to defend was not caused by inexcusable neglect or avoidance of service].)

Accordingly, Ashley’s motion is DENIED.