Case Number: BC639832 Hearing Date: January 16, 2018 Dept: 78

Superior Court of California
County of Los Angeles
Department 78

WESCO INSURANCE COMPANY:

Plaintiff,

vs.

scott cochran and dba RYANCO PROTECTIVE COATINGS, et al..;

Defendants.

Case No.:

BC639832

Hearing Date:

January 16, 2018

DEFENDANT SCOTT COCHRAN DBA RYNCO PROTECTIVE COATINGS’ MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT

The court GRANTS Defendant’s Motion for Order Vacating and Setting Aside Default. Because the court finds that it lacks jurisdiction over defendant Scott Cochran for lack of proper service, the court sets an OSC re: Proof of Service of Summons and Complaint for March 5, 2018, at 8:30 a.m.

FACTUAL ALLEGATIONS

This is an action for breach of contract. Plaintiff Wesco Insurance Company (“Wesco”) alleges that it provided Defendants Scott Cochran dba Ryanco Protective Coatings (“Cochran”) with an workers compensation and employers liability insurance policy on March 12, 2013. (Complaint ¶ 9.) Wesco assessed Cochran’s premiums on the policy based on Cochran’s estimated exposures during the policy period, subject to change following an audit, at which point Cochran would have to pay the difference between the accumulated estimated premiums and the premium amounts arrived at following the audit. (Complaint ¶ 9.) Wesco performed an audit for the 2013 policy period, and found on February 12, 2015 that Cochran owed additional premiums in the amount of $2,714.00. (Complaint ¶ 10.) Wesco also performed an audit for the 2014 policy period, and found that Cochran owed additional premiums in the amount of $24,937.43. (Complaint ¶ 16.) Cochran has not paid these amounts. (Complaint ¶¶ 12, 18.)

procedural history

Wesco filed its Complaint on November 4, 2016, alleging two causes of action for breach of contract based on Cochran’s purported violations of the 2013 and 2014 policies.

Wesco filed a Proof of Service of Summons on December 8, 2016, indicating that Cochran had been served at his business by substitute service and that a copy of the pleadings and summons had been mailed to the same address.

Default was entered against Cochran on January 24, 2017.

A Clerk’s Judgment was entered against Cochran on March 2, 2017, in the amount of $32,686.48.

Wesco filed a Memorandum of Costs after Judgment on April 25, 2017, in the amount of $447.50.

On August 3, 2017, Wesco filed a Motion for Order Determining Claim of Excemption of Defendant re: Deposit Accounts and Safe Deposit Boxes. Wesco also filed a Notice of Opposition to Claim of Exemption on that same day.

On August 4, 2017, Cochran filed the present Motion to Set Aside Default and Default Judgment. The motion was served on Wesco’s counsel by mail the day before it was filed.

No opposition has been filed.

DISCUSSION

MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT

“The court may, . . . on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc., § 473, subd. (d).)

“‘[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.] Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. [Citation.]’ [Citation.] Under section 473, subdivision (d), the court may 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.)

Mere notice of litigation does not confer personal jurisdiction absent substantial compliance with the statutory requirements for service of summons. (MJS Enterprises, Inc. v. Superior Court (1984) 153 Cal.App.3d 555, 557.)

While courts are not required to accept self-serving evidence — such as declarations that one was not served — submitted to support a motion to quash, facial defects of the proof of service will rebut its presumption of proper service. (American Exp. Centurion Bank, supra, 199 Cal.App.4th at p. 390.) The burden is on a plaintiff to prove facts showing that service was effective because the person it was made on was an agent authorized to accept service. (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.)

Code of Civil Procedure § 415.20, subd. (b) allows for substituted service upon a natural person “at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address.”

Cochran argues that the judgment entered against him was void for lack of jurisdiction because service was never properly completed on him. He notes that the declaration of diligence attached to the proof of service of summons filed by Wesco in December 2016 indicates that service was purportedly accomplished upon one “Sarai Lapata – Parts Manager,” at the address “13030 Firestone Blvd., Santa Fe Springs, CA 90670.” (Motion at p. 3.) He also notes that, in the declaration of diligence, the process server declares the following in relation to an instance of attempted service on November 22, 2016 at the same address:

PER SARAI (PARTS MANAGER) COMPANY IS UNKNOWN, THE COMPANY AT THIS LOCATION IS CALLED CAL-LINE EQUIPMENT AND HAVE BEEN HERE FOR 1 YEAR, ALSO SUBJECT IS UKNOWN

Service was deemed accomplished against Cochran and Ryanco Protective Coatings the next day on the same parts manager, Sarai Lapata.

In a declaration accompanying the motion, Cochran states at the time of service, his business was no longer located at that address, and that he first learned of the present lawsuit in July 2017 when his bank advised him that his accounts were overdrawn after it had received a Notice of Levy. (Cochran Decl. ¶¶ 5–6.)

The court finds that at the time default and default judgment were entered against Cochran, this court lacked jurisdiction over Cochran for lack of proper service. Accordingly, the court GRANTS Cochran’s Motion to Set Aside Default and Default Judgment.

As the court finds that it lacks jurisdiction over Cochran for lack of proper service, an OSC re: Proof of Service of Summons and Complaint is set for March 5, 2018, at 8:30 a.m.

Moving defendant to give notice.

DATED: January 16, 2018 ________________________________

Hon. Gail Ruderman Feuer

Judge of the Superior Court