Itria Ventures LLC v. S. Garcia Distribution LLC, et al.

Jaimes’ motion appears timely. While the requests for entry of default were served on Defendants, no proof of service for notice of entry of default is on file. Notice of entry of judgment was served on March 23, 2026. This motion was filed less than 180 days after service of notice of entry of judgment and less than two years after judgment was entered and therefore is timely.

Jaimes declares that he did not receive any form of notice of this lawsuit. He declares that upon information and belief, service was attempted at an address that was not his residence. Specifically, the address used was 800 6th St., Unit #3708, Paso Robles, CA 93446, which is a United States Post Office location and not a valid residential address for personal service. (Jaimes Decl., ¶ 3.) Jaimes further declares that he previously resided at 728 Experimental Station Rd., Apt 103, Paso Robles, CA 93446, but he has not lived at that address for approximately three years prior to this action. (Jaimes Decl., ¶ 4.)

Jaimes declares that he had no knowledge of the case and was deprived of any opportunity to respond or defend himself prior to the entry of default judgment. (Jaimes Decl., ¶ 5.) Jaimes declares that he first became aware of the existence of the judgment on April 23, 2026, when his operating business bank account was levied, which caused severe and immediate hardship. 2 (Jaimes Decl., ¶¶ 6, 9.)

Plaintiff responds that Jaimes fails to show that he did not evade service, and that the Court authorized service of publication for Jaimes.

Plaintiff details the attempts made to service Jaimes. (Shank Decl., ¶¶ 2-7, Exs. A-G.) This includes multiple attempts at personal service at multiple addresses, including the business address for the LLC listed with the Secretary of State, the address on Jaimes’ driver’s license, and addresses located in a skip-trace report. (Ibid.)

Plaintiff first unsuccessfully attempted service at the address listed for the LLC with the Secretary of State. (Shank Decl., ¶ 3, Exs. B, C.)

Plaintiff’s second unsuccessful attempt at service on Jaimes was at the address on Jaimes’ driver’s license, 223 E Bunny Avenue, Apt. C, in Santa Maria California. (Shank Decl.,

2 At set forth above, the judgment against the LLC is not challenged here. 2

¶¶ 2, 4, Ex. D.) On the process server’s second attempt at that address, the resident identified herself as Jaimes’s sister and stated that he no longer resided there and that she did not have his current address. Her minor sons made the same representation. (Shank Decl., ¶ 4, Ex. D.) Meanwhile, Jaimes’ current motion lists 223 E Bunny Avenue, Apt. C, in Santa Maria, as his address on the notice of motion.

Plaintiff also unsuccessfully attempted service at two addresses located on a skip-trace report, 5715 Santa Cruz Rd Spc 34, in Atascadero, and 223 E Bunny Avenue, Apt. K, in Santa Maria. (Shank Decl., ¶¶ 6, 7, Exs. F, G.) At the Bunny Avenue address, Apartment K, Jaimes’ mother and brother both stated that Jaimes had not resided in that apartment for years. Jaimes’ brother stated that he did not receive mail at that address, and his mother refused to answer. (Sank Decl., ¶ 7, Ex. G.)

Plaintiff further contends that Jaimes waived personal service. Section 15(c) of the parties’ agreement waives the requirement of personal service and provides that service of process may be made by certified or registered mail (Compl. Ex. A., §15(c) at p. 11; Rockefeller Technology Investments (Asia) VII v. Changzhou SinoType Technology Co., Ltd. (2020) 9 Cal.5th 125, 132 [service of summons by international mail sufficient to confer jurisdiction where parties’ agreement waived formal service of process].)

Plaintiff’s counsel declares that on December 9, 2024, Plaintiff sent a copy of the Summons and Complaint to Jaimes at the PO Box via certified mail. (Shank Decl., ¶ 5.) Counsel attaches as Exhibit E a proof of service from December 10, 2024. However, that proof of service only shows service by regular mail and overnight delivery. (Ex. E.) The Court records do show that on January 17, 2025, Plaintiff filed an amended proof of service declaring that he summons and complaint were served via certified mail, however, no return receipt was provided.

Service by publication was sufficient to confer jurisdiction over Jaimes on this Court. Regardless of the propriety of service, however, for purposes of a motion under Code of Civil Procedure section 473.5, the question is not of personal jurisdiction, but rather actual notice, evasion of service and the question of fundamental fairness.

Section 415.50, authorizing service by publication, allows the court to acquire jurisdiction over a defendant who cannot be served personally or by substituted service under section 415.20 or 415.30, even after diligent effort. Jurisdiction so acquired is constitutional. [Citation.] However, it is recognized that such service is on many occasions unlikely to result in actual notice, and to some extent the same may be true of any form of substituted or constructive service. Thus, section 473.5 reflects the understanding that if any form of service of summons does not result in actual knowledge, fundamental fairness may require that a subsequent default be set aside. (Olvera v.

Olvera (1991) 232 Cal.App.3d 32, 40; see also Ellard v. Conway (2001) 94 Cal.App.4th 540, 548 [actual knowledge from source other than service of summons does not preclude a defendant from seeking relief under section 473.5 but does not require the

court to grant relief in all circumstances.])

“A party seeking relief under section 473.5 must provide an affidavit showing under oath that his or her lack of actual notice in time to defend was not caused by inexcusable neglect or avoidance of service. [Citation.]” (Anastos v. Lee (2004) 118 Cal.App.4th 1314, 1319.)

Jaimes’ declaration does not address or establish that his lack of actual notice was not caused by his avoidance of service or inexcusable neglect. (Code Civ. Proc., § 473.5, subds. (b), (c).) Nor does Jaimes address the fact that service was attempted at multiple addresses, and that when service was attempted at his address of record for purposes of this motion, the process server was told by Jaimes’ sister that Jaimes did not reside there.

Jaimes in fact filed no reply responding to any of Plaintiff’s arguments.

Nor does Jaimes serve and file a copy of the answer or other response proposed to be filed in the action, as required. (Code Civ. Proc., § 473.5, subd. (b).)

The Court denies Jaimes’ request to set aside the default judgment. While Plaintiff has not shown definitively that Jaimes in fact had actual knowledge of the action, Jaimes does not address evasion of service and the facts tend to show evasion.

Plaintiff contends that if it prevails on the motion, an award of attorneys’ fees and costs is mandatory under Code of Civil Procedure section 473(b). However, Plaintiff does not move pursuant to that section; Jaimes moves only under Code of Civil Procedure section 473.5. Under that section, the court is empowered to grant such relief “on whatever terms as may be just.” (Code Civ. Proc., § 473.5, subd. (c).) While fees and costs may be awarded under that section, unlike a motion under section 473 an award of fees is not mandatory. The Court does not find an award of sanctions here just.

ORDER (PROPOSED)

Jaimes’ motion to set aside default judgment pursuant to Code of Civil Procedure section 473.5 is denied.

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