DOUGLAS vs VOLUNTEERS OF AMERICA NORTHERN CALIFORNIA AND NORTHERN NEVADA

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing

23CV010857: DOUGLAS vs VOLUNTEERS OF AMERICA NORTHERN CALIFORNIA AND NORTHERN NEVADA 07/31/2024 Hearing on Motion to Set Aside/Vacate Default (CCP 473.5) in Department 53

or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will be forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING:

The motion of Defendant Volunteers of America Northern California & Northern Nevada (“Defendant”) to set aside the default and for leave to file a demurrer to Plaintiff Raymond Douglas’ complaint is GRANTED.

The clerk entered Defendant’s default in this action at the request of Plaintiff on February 6, 2024. Defendant moves to set aside the default under Code of Civil Procedure § 473(b) and (d). Plaintiff opposes the motion.

Code of Civil Procedure § 473(d)

“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(d).)

Defendant argues the default entered against it is void because Plaintiff failed to properly serve the summons and complaint.

The proof of service of summons indicates Defendant was personally served on December 12, 2023 by delivering a copy of the papers to an authorized person under Code of Civil Procedure § 416.90. Similarly, the summons provides notice the person served was served on behalf of Defendant under section 416.90.

Code of Civil Procedure § 416.90 provides that a “summons may be served on a person not otherwise specified in this article by delivering a copy of the summons and of the complaint to such person or to a person authorized by him to receive service of process.” Service under section 416.90 is not proper on a defendant where it is apparent the defendant is not an individual, but a business entity of a type specified in sections other than 416.90. (Warner Bros. Records, Inc. v. Golden West Music Sales (1974) 36 Cal.App.3d 1012, 1016.)

Defendant contends it is a corporation subject to service under Code of Civil Procedure § 416.10. The complaint alleges Defendant is an unincorporated nonprofit organization, which would subject Defendant to service under Code of Civil Procedure § 416.40. Plaintiff’s opposition indicates Defendant is a shelter facility operated by a nonprofit organization. Although Plaintiff argues Defendant’s capacity is not specified in sections 416.10 through 416.90, it is apparent that Defendant is not an individual. Rather, Defendant is either a corporation subject to service under

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV010857: DOUGLAS vs VOLUNTEERS OF AMERICA NORTHERN CALIFORNIA AND NORTHERN NEVADA 07/31/2024 Hearing on Motion to Set Aside/Vacate Default (CCP 473.5) in Department 53

section 416.10, or an unincorporated organization subject to service under section 416.40. Plaintiff’s attempt to serve Defendant under section 416.90 was therefore defective on its face.

A defendant is “‘under no duty to act upon a defectively served summons.’” (Kremerman v. White (2021) 71 Cal.App.5th 358, 374 quoting Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466.) Where proof of service of summons is defective on its face, a court lacks fundamental jurisdiction over the party, making any resulting default or default judgment void. (Kremerman v. White, supra, 71 Cal.App.5th at p. 371.) It is well established that, pursuant to Code of Civil Procedure § 473(d), a Court may set aside a default and default judgment that is valid on its face, but void, as a matter of law, due to improper service. (Id. at p. 371; Braugh v. Dow (2023) 93 Cal.App.5th 76, 88; Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.)

Nonetheless, Plaintiff argues the Court lacks authority to set aside the default based on defective service because Code of Civil Procedure § 473(d) only grants the Court authority to set aside a judgment or order. Plaintiff argues a default is not an order or judgment, and therefore cannot be set aside under section 473(d). The Court rejects this argument. None of the cases cited by Plaintiff expressly considers the question of whether a void default may be set aside under section 473(d) before a default judgment has been entered.

Notably, having determined service was defective on its face, the Court lacks authority to enter a default judgment based on the defective service. Accordingly, denying the motion on grounds a default judgment has not yet been entered would merely delay proceedings until Plaintiff can effectuate proper service, at which time Defendant would be entitled to respond to the properly served summons and complaint.

Even if the Court lacks authority to set aside the default, Court has inherent authority to direct the clerk to vacate a default that was entered against a party without jurisdiction. The clerk is required to enter a default when a defendant has been served and fails to timely respond to the summons and complaint. (Code Civ. Proc. § 585(b).) Here, Defendant was not properly served and was not required to appear. It follows the default should not have been entered due to the fact that the Court, and thus, the clerk, lacked jurisdiction to enter default to begin with. The Court has authority to control the conduct of its ministerial officers. (Code Civ. Proc. § 128(a)(5.) Thus, the Court has authority to direct the clerk of court to vacate the default on grounds the defendant was not properly served.

Code of Civil Procedure § 473(b)

The Court need not proceed further in granting this motion. Nonetheless, the Court notes that even if service had not been defective and jurisdiction lacking, Defendant would still be entitled to relief under section 473(b). Thus, the motion is granted on this alternative ground as well.

“The court may, upon any terms as may be just, relieve a party or his or her legal representative

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV010857: DOUGLAS vs VOLUNTEERS OF AMERICA NORTHERN CALIFORNIA AND NORTHERN NEVADA 07/31/2024 Hearing on Motion to Set Aside/Vacate Default (CCP 473.5) in Department 53

from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc. § 473(b).)

The proof of service indicates the summons and complaint were delivered to Ana Cobian, a media assistant employed by Defendant. Ms. Cobian has “not been trained or authorized to accept service of lawsuits and did not understand the pressing nature of providing a response.” (Cobian Decl., ¶ 2.) Nonetheless, Ms. Cobian scanned the documents and forwarded them to here supervisor, Gretchen Angele, who in turn forwarded the documents to the Interim Chief Operating Officer, Melissa Liou. (Id, ¶ 3; Liou Decl., ¶ 3.)

Ms. Liou was on vacation until January 5, 2024, and due to the backlog of emails, did not discovery the lawsuit until late January 2024. (Liou Decl., ¶ 4.) A claim was submitted to one of Defendant’s carriers, who denied coverage on February 15, 2024. (Id., ¶ 5.) The claim was then tendered to a general liability insurer, who denied coverage on March 12, 2024. (Id., ¶ 6.) On March 27, 2024, Defendant contacted Counsel of record, who discovered the default. (Gavin Decl., ¶ 2.) Defendant acted promptly to file this motion, along with the proposed demurrer, on April 8, 2024.

“‘It is settled that the law favors a trial on the merits . . . and therefore liberally construes section 473. . . . Doubts in applying section 473 are resolved in favor of the party seeking relief from default . . . and if that party has moved promptly for default relief only slight evidence will justify an order granting such relief.’” (Caldwell v. Methodist Hospital, 24 Cal. App. 4th 1521, 1524 quoting Iott v. Franklin (1988) 206 Cal.App.3d 521, 526.) In light of this policy and under these circumstances set forth above, the Court also finds, in the alternative, that the default should be set aside based on the excusable neglect of Defendant.

The Court rejects Plaintiff’s argument that vacating the default would prejudice Plaintiff because an earlier action on the same or similar ultimate facts was previously dismissed for failure to bring the action to trial. In support of the argument for prejudice, Plaintiff cites to the policy in favor of disposing litigation on the merits, rather than on procedural grounds (see Gonzales v. County of Los Angeles (1988) 199 Cal.App.3d 601.) This policy, however, favors setting aside the default. Plaintiff is not prejudiced by being required to prove the merits of the claims at trial merely because Plaintiff failed to timely bring a prior action to trial.

Disposition

The motion to vacate the default and for leave to file a demurrer is GRANTED. Defendant shall file the proposed demurrer no later than August 15, 2024.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV010857: DOUGLAS vs VOLUNTEERS OF AMERICA NORTHERN CALIFORNIA AND NORTHERN NEVADA 07/31/2024 Hearing on Motion to Set Aside/Vacate Default (CCP 473.5) in Department 53

The notice of motion does not provide notice of the Court’s tentative ruling system, as required by Local Rule 1.06. Moving counsel is directed to contact the client, opposing counsel and/or self-represented litigants and advise them of Local Rule 1.06 and the Court’s tentative ruling procedure and the manner to request a hearing. If moving counsel is unable to contact opposing parties prior to hearing, moving counsel is ordered to appear at the hearing by Zoom or by telephone.