Campus Pointe Commercial, L.P. v. 5IVE 5IVE N9NE, LLC

1 Defendant Andrews is not an attorney, so he cannot represent Kicks, which is an LLC. Therefore, the motion is technically improper to the extent that Andrews is seeking to represent the LLC. However, Andrews does have the right to move for relief on his own behalf in pro per, and his arguments apply to the LLC as well.

In determining whether the default was entered against the defendant as a result of his or her reasonable mistake, inadvertence, surprise or excusable neglect, the court must look at whether the mistake or neglect was the type of error that a reasonably prudent person under similar circumstances might have made. (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276.) However, the court will not grant relief if the defendant’s default was taken as a result of mere carelessness or other inexcusable neglect. (Luz v.

Lopes (1960) 55 Cal.2d 54, 62.) “The ‘surprise’ referred to in section 473 is defined to be some ‘condition or situation in which a party to a cause is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.’ The ‘excusable neglect’ referred to in the section is that neglect which might have been the act of a reasonably prudent person under the same circumstances. A judgment will not ordinarily be vacated at the demand of a defendant who was either grossly negligent or changed his mind after the judgment.” (Baratti v.

Baratti (1952) 109 Cal.App.2d 917, 921, citations omitted.)

Also, the moving party must show that they were diligent in seeking relief from the default, and that they sought relief within a reasonable time after they learned of the default. “This court has held that what a ‘reasonable time’ is in any case depends primarily on the facts and circumstances of each individual case, but definitively requires a showing of diligence in making the motion after the discovery of the default. In other words, the moving party must not only make a sufficient showing of ‘mistake, inadvertence, surprise, or neglect’ in order to excuse the original default, but must also show diligence in filing its application under section 473 after learning about the default.

If there is a delay in filing for relief under section 473, the reason for the delay must be substantial and must justify or excuse the delay.” (Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1181, citations omitted.)

Here, defendants have not shown that the default was entered against them due to their mistake, inadvertence, surprise or excusable neglect. In fact, defendants provide no explanation for their failure to answer the complaint other than that they were allegedly not served by personal delivery or any other method of service authorized by the Code of Civil Procedure. Nor have they provided a copy of their proposed answer with their motion. In addition, while they filed their motion less than six months after the default was entered against them, they admit that they waited almost two months after discovering the existence of the default before filing their motion. Defendants have not provided an explanation for their fairly lengthy delay in seeking relief from the default. Thus, they have failed to show that they are entitled to relief under section 473(b).

On the other hand, defendants have shown that they are entitled to relief from the default under section 473, subdivision (d). Section 473(d) provides that “[t]he 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).) “ ‘[I]nclusion of the word “may” in the language of section 473, subdivision (d) makes it clear that a trial court retains discretion to grant or deny a motion to set aside a void judgment [or order].’ However, the trial court ‘has no statutory power under section 473, subdivision (d) to set aside a judgment [or order] that is not void....’ Thus, the reviewing court ‘generally faces two separate determinations when considering an appeal based on section 473, subdivision (d): whether the order or judgment is void and, 4 if so, whether the trial court properly exercised its discretion in setting it aside.’” (Pittman v.

Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1020, citations omitted.)

“In determining whether an order is void for purposes of section 473, subdivision (d), courts distinguish between orders that are void on the face of the record and orders that appear valid on the face of the record but are shown to be invalid through consideration of extrinsic evidence. ‘This distinction may be important in a particular case because it impacts the procedural mechanism available to attack the judgment [or order], when the judgment [or order] may be attacked, and how the party challenging the judgment [or order] proves that the judgment [or order] is void.’” (Id. at pp. 1020– 1021, citation omitted.) “An order is considered void on its face only when the invalidity is apparent from an inspection of the judgment roll or court record without consideration of extrinsic evidence.

There is no time limit to attack a judgment void on its face. If the invalidity can be shown only through consideration of extrinsic evidence, such as declarations or testimony, the order is not void on its face. Such an order must be challenged within the six-month time limit prescribed by section 473, subdivision (b), or by an independent action in equity.” (Id. at p. 1021, citations omitted.)

Here, defendants claim that they were not properly served with the summons and complaint, which were served on the manager of a Postal Office box service rather than on them personally. They also claim that the complaint was not served on them by any method authorized under the Code of Civil Procedure. Thus, defendants conclude that the default is void and must be vacated. In its opposition, plaintiff argues that it properly served defendants by serving the manager of private mail service where defendants maintain their Post Office box, as authorized by Code of Civil Procedure section 415.20, subdivision (c). Therefore, plaintiff concludes that the service was validly completed on defendants and the default is not void.

An inspection of the court’s records indicates that defendants were served on September 10, 2025 at a business called The Postal Station located at 4460 West Shaw Avenue, #559, Fresno, California, 93722, by substituted service on the manager of the business. (See Proofs of Service filed November 25, 2025.) The process server subsequently mailed a copy of the summons and complaint to defendants at the same address. (Ibid.) When defendants failed to answer the complaint, plaintiff took their default on November 25, 2025.

Thus, the court’s records show that defendants were not served by personal delivery or by substituted service on competent member of defendants’ household at their residence or a person apparently in charge of their regular place of business. Consequently, the service of the summons and complaint did not comply with the usual methods provided under the Code of Civil Procedure. (Code Civ. Proc., §§ 415.10; 415.20.)

Also, since plaintiff served defendants by substituted service, plaintiff needed to provide some evidence that it was unable to reasonably serve defendants by personal delivery. (Code Civ. Proc., § 415.20, subd. (b).) Here, plaintiff’s process server did not file a declaration of diligence with the proofs of service showing that he made several attempts to serve defendants personally and that he was unable to complete service. 5 Therefore, plaintiff has not shown that defendants were properly served by substitution because they could not be served personally.

Nevertheless, plaintiff argues that defendants were properly served under Code of Civil Procedure section 415.20, subdivision (c). Under section 415.2(c), “Notwithstanding subdivision (b), if the only address reasonably known for the person to be served is a private mailbox obtained through a commercial mail receiving agency, service of process may be effected on the first delivery attempt by leaving a copy of the summons and complaint with the commercial mail receiving agency in the manner described in subdivision (d) of Section 17538.5 of the Business and Professions Code.” (Code Civ. Proc., § 415.20, subd. (c).)

Business and Professions Code section 17538.5 provides a procedure under which a person selling consumer goods or services may designate a commercial mail receiving agency (CMRA) to act as an agent for service of process on the person’s behalf. “Every person receiving private mailbox receiving service from a CMRA in this state shall be required to sign an agreement, along with a USPS Form 1583, which authorizes the CMRA owner or operator to act as agent for service of process for the mail receiving service customer. Every CMRA owner or operator shall be required to accept service of process for and on behalf of any of their mail receiving service customers, and for two years after termination of any mail receiving service customer agreement.” (Bus. & Prof. Code, § 17538.5, subd. (d)(1).)

Here, plaintiff appears to be arguing that defendants were served at The Postal Station, which was their designated CMRA, and thus The Postal Station was authorized to act as defendants’ agent for service of process under Business and Professions Code section 17538.5. Consequently, plaintiff argues that service on the CMRA was valid to effect service on defendants. However, plaintiff has not submitted any evidence showing that The Postal Station was acting as defendants’ CMRA and thus was authorized to accept service on their behalf.

While it is true that the defendants list the address of The Postal Station as their principal address with the California Secretary of State, there is no evidence that defendants authorized The Postal Station to act as their CMRA and accept service of a complaint on their behalf. Thus, plaintiff has not shown that defendants were properly served with the summons and complaint.

As a result, the court intends to find that defendants were not properly served with the summons and complaint, and the subsequent default entered against them is void. Consequently, the court intends to grant the motion to set aside the default entered against defendants Andrews and Kicks.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: KCK on 06/15/26. (Judge’s initials) (Date) 6