Steve La Bella and Izella La Bella v. D & M General Contracting, et al.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SAN BERNARDINO

STEVE LA BELLA and IZELLA LA BELLA, Case No.: CIVSB2505386 Plaintiffs, [TENTATIVE] ORDER GRANTING MOTION TO SET v. ASIDE ENTRY OF DEFAULT AGAINST DEFENDANT MELISSA D & M GENERAL CONTRACTING, et al., MONTELLANO Defendants.

I. INTRODUCTION

On February 25, 2025, Plaintiffs Steve La Bella and Izella La Bella filed a Complaint

against Defendants D & M Contracting; D&M General Contracting and Handyman Services;

D&M General Construction; Dominic Montellano (Dominic); and Melissa Montellano (Melissa).

Plaintiffs allege the following causes of action: (1) restitution for unlicensed contracting; (2)

violation of Business & Professions Code § 7159 – failure to provide a written home

improvement contract; (3) breach of contract; (4) fraud; and (5) violation of Business and

Professions Code § 17200 – Unfair Business Practices.

The Complaint arises from improvements to the front and back yard of Plaintiffs’

residence that they expected to be completed by July 4, 2023. After D&M and Dominic sent a

“Bid Proposal” related to the work Plaintiffs requested, Plaintiffs agreed to hire D&M to perform

the work and D&M sent an invoice for $70,000. Plaintiffs allege D&M violated Business and

Professions Code section 7159 by failing to provide them with a formal written contract for the

project. It also violated section 7159 by demanding a $13,000 deposit. From April to June 2023,

D&M sent workers to the property, but in June 2023, D&M stopped making progress on the

project. During this time, D&M made frequent requests for “progress payments” from Plaintiffs,

which they paid. D&M failed to obtain necessary permits for the project. As of December 2024,

D&M failed to complete the project, and Plaintiff Steve sent an email terminating all services.

Plaintiffs also allege that neither Defendant Dominic nor D&M had a valid contractor’s license

and seek a refund of the $83,877 they paid. (Compl. ¶¶ 15-32.)

On July 22, 2025, Plaintiffs obtained an order for service by publication that included

Defendant Melissa. On October 8, 2025, Defendant Melissa’s default was entered.

Now before the Court is Defendant Melissa’s motion to set aside the default under Code

of Civil Procedure sections 473.5, and the discretionary provision of section 473, subdivision (b).

Plaintiffs oppose. To date, Defendant Melissa has not replied.1 After issuing a tentative ruling

and holding a hearing on the motion, the Court now issues its final ruling.2

II. WHY THE COURT IS GRANTING THE MOTION

Although Defendant Melissa’s motion is based upon Code of Civil Procedure sections

473.5 and 473(b), based upon its review of case records, the Court has identified separate,

independent grounds to grant this motion.

Under Code of Civil Procedure section 415.50, Plaintiff has not demonstrated that

service by publication was properly effected. Section 415.50, subdivision (b), requires that an

1 According to Defendant Melissa, Dominic Montellano died on December 9, 2025. (Melissa Montellano Decl. ¶ 6.) 2 The Court finds that the moving party has complied with its meet-and-confer obligation.

order for service by publication “shall direct that a copy of the summons, the complaint, and the

order for publication be forthwith mailed to the party if his or her address is ascertained before

expiration of the time prescribed for publication of the summons.”

While the order for service by publication did not include this specific requirement,3

Plaintiffs were authorized to serve by publication pursuant to section 415.50, which includes the

mailing requirement. Nothing in the record demonstrates that Plaintiffs mailed the summons,

complaint, and order for publication to Defendant Melissa. “[S]ervice by publication is ‘a last

resort’ . . . [;] section 415.50 is strictly construed.” (Calvert v. Al Binali (2018) 29 Cal.App.5th

954, 963.)

Here, Plaintiffs admit that before publication, they knew Defendant Melissa’s address but

do not demonstrate that they mailed the summons, complaint, and order for publication to her as

part of effecting service by mail. Entry of the default should be found void where service by

publication is not demonstrated to have been properly effectuated. Without proper service of the

summons and complaint, the court lacks personal jurisdiction over the defendant.

“[A] court has inherent power, apart from statute, to correct its records by vacating a

judgment which is void on its face, for such a judgment is a nullity and may be ignored.

[Citations.]” (Olivera v. Grace (1942) 19 Cal.2d 570, 574.) “[A]lthough the court does not comb

the record for errors not pointed out by [the defendant], it ‘is at liberty to consider, and even to

decide, a case upon any points that its proper disposition may seem to require whether taken by

counsel or not ....’ [Citation.]” (Stevenson v. Turner (1979) 94 Cal.App.3d 315, 318-19.) “[A]

default that is void on the face of the record when entered is subject to challenge at any time

3 The form of this proposed order was proposed by Plaintiffs, on May 20, 2025.

irrespective of lack of diligence in seeking to set it aside....” (Plotitsa v. Superior Court (1983)

140 Cal.App.3d 755, 761.)

There is another reason that supports finding that Plaintiffs did not properly effectuate

service by publication, making service and the entry of the default void.

In their motion seeking service by publication, Plaintiffs did not state whether they had

attempted service by mail with notice and acknowledgment pursuant to Code of Civil Procedure

section 415.30. “If a defendant’s address is ascertainable, a method of service superior to

publication must be employed, because constitutional principles of due process of law, as well as

the authorizing statute, require that service by publication be utilized only as a last resort.”

(Watts v. Crawford (1995) 10 Cal.4th 743, 749, fn.5.) Here, it is not demonstrated that Plaintiffs

attempted service by mail with notice and acknowledgment pursuant to section 415.30. (See

Transamerica Title Ins. Co. v. Hendrix (1995) 34 Cal.App.4th 740, 746 (Transamerica).) In

Transamerica, the Court found the application for service by publication was defective where the

plaintiff failed to attempt service by mail pursuant to section 415.30 before filing its application

for order for publication of summons. Therefore, the section 415.50 motion for service by

publication was found defective as a matter of law. The Court found that where the defendant’s

address was known, the plaintiff’s failure to attempt service pursuant to section 415.30

invalidated the plaintiff’s application for service by publication. (Transamerica, supra, 34

Cal.App.4th at p. 746.) The court stated that based on the plaintiffs’ “failure to comply with

Code of Civil Procedure section 415.30, the section 415.50 motion was incorrectly granted as a

matter of law and therefore service by publication was invalid....” The appellate court concluded

that in such circumstances, “[t]he trial court had a legal duty, not merely discretionary power, to

vacate the default it had erroneously entered.” (Transamerica, supra, at p. 746.)

III. CONCLUSION

Defendant Melissa’s motion to set aside entry of default is GRANTED. The entry of

default was void, because service by publication was not properly effectuated due to:

(1) Plaintiffs’ motion for publication failing to address whether Plaintiffs attempted to comply

with section 415.30 [service by mail with a notice of acknowledgment] before seeking service by

publication, and (2) Plaintiffs, as part of service by publication, failing to mail copies of the

summons, complaint, and order of publication to Defendant Melissa where Plaintiffs admit her

address was known.

IT IS SO ORDERED.

Dated: [TENTATIVE – NOT FINAL] Hon. Joseph B. Widman Judge of the Superior Court