Jinju Park v. Luis Alberto Espana, et al.

The court has found that Defendant has met its burden of proving that an arbitration agreement exists between the parties. Given that the instant motion is unopposed, Plaintiff has not established by a preponderance of the evidence any fact necessary to Plaintiff's defense. Accordingly, Defendant's Motion to Compel Arbitration is GRANTED. CONCLUSION Based on the foregoing, Defendant's Motion to Compel Arbitration is GRANTED. The court STAYS this action pending conclusion of the arbitration proceedings. Status Conference Re: Arbitration is scheduled for September 17, 2027 at 10:00 AM. Moving party is ordered to give notice of ruling.

Moving Party: Defendant Luis Alberto Espana Responding Party: Plaintiff Jinju Park

The court considered the moving papers, opposition, and reply. Moving Defendant's Motion to Set Aside Default is GRANTED. PROCEDURAL ISSUES Pursuant to California Rules of Court, Rule 3.1113(d), "[n]o reply or closing memorandum may exceed 10 pages." Here, Moving Defendant's reply memorandum is thirteen pages, in violation of Rule 3.1113(d). However, the court exercises its discretion to consider Moving Defendant's reply brief. PROCEDURAL BACKGROUND On April 7, 2026, Plaintiff Jinju Park ("Plaintiff") filed a complaint against Defendants Luis Alberto Espana, American Contractors Indemnity Company, and DOES 1 through 50, inclusive (collectively, "Defendants"), alleging fifteen causes of action for: (1) Negligence; (2) Breach of Express Warranty; (3) Breach of Implied Warranty; (4) Strict Liability; (5) Breach of Contract; (6) Fraud & Deceit - By Misrepresentation; (7) Fraud & Deceit - By Concealment; (8) Violation of Business & Professions Code Section 7159; (9) Violation of Business & Professions Code Section 7160; (10) Negligent Misrepresentation; (11) Conversion; (12) Unjust Enrichment; (13) Accounting; (14) Action on Performance Bonds; and (15) Unfair Business Practices in Violation of Business and Professions Code Section 17200.

On April 23, 2026, Plaintiff filed a first amended complaint ("FAC") against Defendants, alleging the same fifteen causes of action. On July 2, 2026, default was entered against Defendant Luis Alberto Espana ("Moving Defendant"). On July 14, 2026, Plaintiff's fourteenth and fifteenth causes of action against Defendant American Contractors Indemnity Company were dismissed without prejudice. On July 20, 2026, Moving Defendant filed the instant motion. On August 31, 2026, Plaintiff filed an opposition.

On September 2, 2026, Moving Defendant filed a reply. FACTUAL BACKGROUND Plaintiff alleges that on June 10, 2025, Moving Defendant presented to Plaintiff two construction budget proposals regarding the remodeling of Plaintiff's home. (FAC, P. 12.) Plaintiff alleges that on June 24, 2025, Plaintiff and Moving Defendant, in the name of Espana Builders, entered into a written contract for the remodel of Plaintiff's home (the "Prime Contract"). (FAC, P. 13.) Plaintiff alleges that Moving Defendant led Plaintiff to believe that Moving Defendant owned and operated a valid company while Moving Defendant knew that Espana Builders did not exist as a legal business entity. (FAC, P. 14.)

Plaintiff alleges that pursuant to the terms of the Prime Contract, Plaintiff was to pay a total of $277,997.50, broken down into several "progress payments." (FAC, P. 15.) Plaintiff alleges that pursuant to the terms of the Prime Contract, the building construction work was to be substantially completed by November 30, 2025, which did not occur. (FAC, P.P. 17-18.) Plaintiff alleges that Moving Defendant continued performing home improvement work in December 2025, during which Moving

Defendant began demanding payment in advance. (FAC, P. 18.) Plaintiff alleges that Moving Defendant failed to appear on the job site or send workers during multiple periods of time between January 2026 and February 2026. (FAC, P. 19.) Plaintiff alleges that on February 13, 2026, she notified Moving Defendant that he had overcharged her by at least $35,525.00, after which Moving Defendant provided a written response stating that no money would be returned to Plaintiff. (FAC, P. 20.) Plaintiff further alleges that Moving Defendant performed negligent construction work and failed to complete the work that he was obligated to perform pursuant to the Prime Contract. (FAC, P.P. 21, 24-25.)

LEGAL STANDARD Code of Civil Procedure 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." A default judgment is void against a defendant who was not served with a summons in the manner prescribed by statute. (See Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 858.) Relief pursuant to Section 473(d) may be made at any time. (See Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.) Code of Civil Procedure Section 415.20(b) provides that "[i]f a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left."

Code of Civil Procedure Section 473.5 provides that, "[w]hen service of a summons has not resulted in actual notice to a party in time to defend the action and a default . . . has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default . . . and for leave to defend the action." The notice must be served and filed "within a reasonable time, but in no event exceeding . . . 180 days after service on him or her of a written notice that the default . . . has been entered." (Code Civ.

Proc. Section 473.5(a).) Upon a finding by the Court that "the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default . . . on whatever terms as may be just and allow the party to defend the action." (Code Civ. Proc. Section 473.5(c).) "Actual notice" under this statute means "genuine knowledge of the party litigant," and not "constructive notice" or "imputed notice." (Rosenthal v.

Garner (1983), 142 Cal. App. 3d 891, 895.) DISCUSSION Moving Party's Argument Moving Defendant argues that the default entered against him is void due to improper service of process, because Plaintiff attempted substituted service by mailing the summons and complaint to a United States Postal Service ("USPS") Post Office Box, which is prohibited by Code of Civil Procedure Section 415.20(b). Moving Defendant argues that Plaintiff did not exercise the requisite reasonable diligence before attempting substituted service.

In the alternative, Moving Defendant moves pursuant to Code of Civil Procedure Section 473.5 on the grounds that Plaintiff's service of the summons and complaint did not result in actual notice to Moving Defendant and the lack of actual notice was not caused by Moving Defendant's avoidance of service or inexcusable neglect. Opposing Party's Argument Plaintiff argues that the entry of default against Moving Defendant is not void because service was proper, as Plaintiff served Moving Defendant's designated business mailing address maintained through a Commercial Mail Receiving Agency after first exercising reasonable diligence to personally serve Moving Defendant at the address listed in the parties' contract.

Plaintiff argues that Moving Defendant mischaracterizes the UPS Store mailbox as a USPS Post Office Box and argues that Plaintiff attempted to personally serve Moving Defendant at the address provided by Moving Defendant in the parties' contract which turned out to be a single family

residence. Plaintiff argues that a registered process server attempted personal service on three occasions yet was informed that Moving Defendant no longer resided at the address. Then, Plaintiff argues that Plaintiff investigated Moving Defendant's official licensing records which identified Moving Defendant's mailing address in Tarzana, California. Finally, Plaintiff argues that any alleged lack of notice resulted from Moving Defendant's own inexcusable neglect because Moving Defendant admits that he did not check the mailbox until after default was entered.

Reply Argument Moving Defendant argues that Plaintiff's process server's declaration is fabricated because the declaration states that no one answered the door but video camera footage shows a conversation between the process server and Moving Defendant's ex-wife. Moving Defendant argues that the process server's logs indicate a bad faith strategy to arrive at the UPS Store only when it was locked and dark inside. Moving Defendant argues that Plaintiff's counsel attempted to retroactively cure service deficiencies by filing a new proof of service and declaration of diligence.

Moving Defendant argues that his lack of notice is due to Plaintiff's strategic decision to bypass Moving Defendant's physical address in favor of a CMRA mail drop. Evidentiary Objections Moving Defendant's evidentiary objections to the Declaration of Manuel Gil Lica are OVERRULED. Moving Defendant's evidentiary objections to the Declaration of James R. Balesh are OVERRULED. Merits of the Motion Moving Defendant moves to set aside the default entered against him pursuant to Code of Civil Procedure Section 473(d), on the grounds that Plaintiff improperly served Moving Defendant by mailing the summons and complaint to a USPS Post Office Box.

Moving Defendant argues that he only discovered Plaintiff's lawsuit when the summons and complaint were "incidentally retrieved" from the USPS Post Office Box. (Mot. 3:22-24.) In opposition, Plaintiff argues that Moving Defendant has mischaracterized a UPS store mailbox as a USPS Post Office Box and argues that Plaintiff exercised reasonable diligence in attempting personal service before resorting to substituted service. The court has independently reviewed the original proof of service filed on July 2, 2026, which indicates that substituted service was accepted on May 22, 2026 by employee Nancy Valentino at 19528 Ventura Boulevard, Suite 492 in Tarzana, California. (Proof of Service, P.P. 4, 5b.)

The attached Declaration of Diligence states that a registered process server attempted service at Moving Defendant's business address twice before serving Nancy Valentino. (Proof of Service, p. 3.) The Declaration of Diligence states that upon the process server's first attempt, "[n]o one answered," and upon the second attempt, the business was closed. (Proof of Service, p. 3.) The court finds that the proof of service does not reflect Moving Defendant's statement that service was only made by delivering the summons and complaint to a USPS Post Office Box.

Substituted service may be made on a person "apparently in charge" of a defendant's usual place of business pursuant to Code of Civil Procedure Section 415.20(b) if other methods of service are unsuccessful. Moving Defendant declares that he maintains his primary business and residential address at 20929 Silvergate Way in Newhall, California (the "Newhall Address"). (Espana Decl., P. 3.) Moving Defendant declares that the Newhall Address is "explicitly listed on the final page of the June 24, 2025 Prime Contract executed with Plaintiff," and is "prominently displayed on the header of all seventeen (17) invoices generated by [Moving Defendant's] company during the course of the project." (Espana Decl., P. 3.)

Moving Defendant declares that "[a]t no time did a process server or any other individual attempt to personally serve [Moving Defendant] with a summons and complaint at [the Newhall Address]." (Espana Decl., P. 11.) Moving Defendant declares that he did not evade service or instruct anyone to refuse service. (Espana Decl., P. 11.) In response, Plaintiff's counsel declares that based on the address provided by Moving Defendant in the parties' contract, "Plaintiff retained a registered process server to personally serve [Moving Defendant] at the Newhall location.

The registered process server made three separate attempts to personally serve [Moving Defendant] at the Newhall address on different dates and times, but [Moving Defendant] could not be personally served." (Balesh Decl., P. 3.) A declaration of diligence is attached to Plaintiff's counsel's declaration as Exhibit 1, which

was not originally filed with the proof of service filed on July 2, 2026. (Balesh Decl., P. 3.) Plaintiff's counsel declares that after personal service failed, Plaintiff "reviewed [Moving Defendant's] license information through the CSLB website and discovered an additional address of record associated with [Moving Defendant's] contractor's license." (Balesh Decl., P. 3.) Plaintiff's counsel declares that the business address posted by the CSLB on its website is 19528 Ventura Boulevard, Suite 492 in Tarzana, California (the "Tarzana Address"). (Balesh Decl., P. 4.)

Plaintiff's counsel declares that when Plaintiff's registered process server appeared at the Tarzana Address to attempt service, it was discovered that the address corresponded to a UPS Store, and the Tarzana Address was a private mailbox maintained within the store. (Balesh Decl., P. 4.) Plaintiff's counsel declares that after Moving Defendant could not be served at the Newhall Address and after Plaintiff discovered that Moving Defendant no longer resided there, Plaintiff served the summons and complaint by substituted service at Moving Defendant's designated address with the CSLB. (Balesh Decl., P. 5.)

The court has reviewed Plaintiff's amended proof of service, which contains a declaration of diligence from Plaintiff's registered process server and states that the process server attempted service at the Newhall Address on April 23, April 27, and May 3, 2026. (Balesh Decl., Exh. 1, p. 4.) The declaration of diligence states that after the first two attempts, no one answered at the Newhall Address, and on the third attempt, a woman informed the process server that Moving Defendant no longer resides at the Newhall Address. (Balesh Decl., Exh. 1, p. 4.)

In reply, Moving Defendant argues that Plaintiff's process server's declaration of diligence is fabricated, and attempts to offer new evidence. "The general rule of motion practice... is that new evidence is not permitted with reply papers." (Jay v. Mahaffey (2013), 218 Cal.App.4th 1522, 1537.) However, given the nature of the case and the shifting burden of proof, the court exercises its discretion to consider any new evidence submitted with Moving Defendant's reply brief. The court finds that Defendant has overcome Plaintiff's evidence that service was proper pursuant to Code of Civil Procedure Section 415.20, as the veracity of the declaration of Plaintiff's registered process server is called into question by Moving Defendant's evidence.

Further, the court credits Moving Defendant's declaration that he was not aware of this lawsuit. The court further finds that Defendant's declaration that he does not regularly check his mail box, does not rise to inexcusable neglect. (Espana Decl., P. 12.) Finally, the court finds that Defendant did not actively evade service of the complaint. Accordingly, Moving Defendant's Motion to Set Aside Default is GRANTED pursuant to Code of Civil Procedure section 473.5. CONCLUSION Based on the foregoing, Moving Defendant's Motion to Set Aside Default is GRANTED.

The proposed answer filed with Defendant's moving papers is deemed filed on September 10, 2026. Defendant is ordered to separately file the Answer within five court days. The pending OSC is discharged. The case management conference is continued until November 10, 2026 at 8:30 AM. The court clerk is ordered to give notice of ruling. | Home -->)" -->