Helm v. Petz CA3

Filed 5/13/13 Helm v. Petz CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin) ----

JOSEPH HELM, C070426

Plaintiff and Appellant, (Super. Ct. No. 39201100259419CUPOSTK) v.

MICHAEL PETZ,

Defendant and Respondent.

Plaintiff Joseph Helm obtained a $3.6 million default judgment against defendant Michael Petz. The trial court subsequently granted Petz‟s motion to set aside his default and the default judgment, after Petz argued he was not properly served with the summons, complaint, or statement of damages. Helm appeals from the trial court‟s order setting aside Petz‟s default and the default judgment entered against him. We find no error, and shall affirm the trial court‟s order.

1

BACKGROUND This action arises out of a car accident. Helm, then 17 years old, lost control of his car while attempting to avoid another vehicle and skidded off the road onto property leased by Petz at 2630 W. Durham Ferry Road in Tracy. Helm settled with the driver of the other car and sued Petz for personal injuries sustained in the accident. Helm alleged that Petz (or someone at his direction) applied a chemical to control dust on the road that caused it to be “ „slick as ice‟ ” and caused Helm‟s injuries. Apparently believing that Petz lived at 2630 W. Durham Ferry Road, Helm hired a process server who filed a declaration of diligence that he twice attempted to serve Petz at that address, stating, “House is in a rural area. No response at door. No cars.” In his third attempt at serving Petz at that address, the process server “[d]iscovered a warehouse in back. Paragon Company. Per employee, Mike not in.” On the fourth day, the process server averred he accomplished substituted service on Petz by leaving a copy of the summons, complaint, and statement of damages with “Jerry Dias, Employee,” a “competent member” of Petz‟s household. When Petz did not respond to the complaint, Helm filed a request for entry of Petz‟s default, which was mailed to Petz at the 2630 W. Durham Ferry Road address. 1 The trial court entered a default judgment against Petz in the amount of $3.6 million, plus costs. According to the proof of service, notice of entry of judgment was mailed to Petz at 2360 W. Durham Ferry Road, and to Petz‟s insurance defense counsel in Rancho Cordova.