Kodiak Films, Inc. v. Jensen

Opinion

SPENCER, P. J. Introduction

Defendant Gary Jensen appeals from an order granting his motion to set aside a default and default judgment on the condition that he pay plaintiff Kodiak Films, Inc. $4,848.48 and an additional $750 “as sanctions, reasonable conditions and costs.”

Statement of Facts

On February 19, 1988, plaintiff filed a complaint alleging defendant’s breach of contract, breach of the covenant of good faith and fair dealing, fraud and negligent misrepresentation. On March 6, 1988, after making three unsuccessful attempts to serve defendant, plaintiff attempted to effect substitute service by serving one Deena Shepherd at 29193 Heffner Road, Acton, California, and thereafter mailing on March 8 copies of the summons and complaint to the same address. The mailed copies were not returned to the process server by the postal service. The process server’s proof of service identifies Ms. Shepherd as “girlfriend, competent member of household.” The Heffner Road residence was one defendant had occupied with his former wife, who owned the residence; in 1985, it was listed as the residential address of the officers of defendant’s corporation. Defendant had not resided there since August 1987.

[1262]Inasmuch as defendant failed to answer, plaintiff filed a request to enter a default on April 20, 1988. A copy of the request was mailed to defendant at the Heffner Road address; it was not returned to plaintiff’s counsel by the postal service. On August 11, 1988, plaintiff filed a request for a default judgment along with the supporting evidence necessary to prove up the judgment. Again, copies of these documents were mailed to defendant at the Heffner Road address; again, they were not returned to plaintiff’s counsel by the postal service. The court granted the request and rendered judgment on the same date, August 11. There is no indication notice of the entry of the judgment ever was served on defendant.

On October 14, 1988, plaintiff applied for the issuance of a writ of execution; the writ was issued on the same date. A notice of a judgment lien on personal property was mailed to defendant at the Heffner Road address on October 18, 1988; it was not returned to plaintiff’s counsel by the postal service. The marshal levied on defendant’s interest in property in the possession of Chelsea Partners on October 26, 1988. Since the only property in the possession of Chelsea Partners was that of defendant’s corporation and not defendant personally, the levy yielded nothing.