Kremerman v. White ( 2021 )

Filed 10/15/21; Certified for Publication 11/8/21 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
MICHAEL KREMERMAN, B307347
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 19BBCV00331)
v.
ANGELA WHITE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, William D. Stewart, Judge. Reversed and
remanded with instructions.
The Ciani Law Firm and Lynne M. Ciani for Defendant and
Appellant.
Dennis P. Block & Associates and Dennis P. Block for
Plaintiff and Respondent.
_________________________
INTRODUCTION
This appeal arises from a breach of contract action by
landlord Michael Kremerman against his former tenant,
appellant Angela White. 1 The trial court entered a default and a
default judgment against White. White moved to vacate the
default and resulting judgment, alleging she was never
effectively served with the summons and complaint. The trial
court denied the motion.
On appeal, appellant White argues the trial court should
have granted her relief under Code of Civil Procedure 2 section
473, subdivision (d), and section 473.5. She argues the trial court
never acquired personal jurisdiction over her because service of
summons by respondent Kremerman was defective.
We agree. We reverse the trial court’s denial of the motion
to vacate and remand with instructions to the trial court to
vacate entry of default and the default judgment and to set aside
the garnishment order issued to execute the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Background Information
On April 1, 2017, Kremerman and White entered into a
written lease agreement for the real property located at 11902
Laurel Hills Road, Studio City, California (Studio City property).
1 The parties interchangeably refer to appellant as Angela
White or Blac Chyna, her professional name. We refer to
appellant by her legal last name, White.
2 Undesignated statutory references are to the Code of Civil
Procedure.
2
According to the one-year lease, White agreed to pay Kremerman
$16,000 per month as rent and $25,000 as a security deposit. The
lease provides that Kremerman may use the security deposit, as
reasonably necessary, to: 1) cure the tenant’s default in payment
of rent payment, 2) repair damages (excluding ordinary wear and
tear) caused by the tenant, and 3) replace personal property or
appurtenances. The lease was to expire on March 31, 2018.
When the lease term was nearing expiration, Kremerman
and White executed an agreement extending it for another year—
to March 31, 2019. The rent increased to $16,480; all other terms
remained unchanged.
Sometime during Fall of 2018, White began the process of
purchasing real property located in Woodland Hills, California.
White contacted Kremerman’s representative, Susan Rollins
(Rollins) of Sotheby’s International Realty and informed her that
she would like to end the lease early. On October 2, 2018, Rollins
sent an email stating: “The owner is happy to let [White] out of
the contract, but as you may know, she is obligated to pay rent
through the term of the lease, or until the Landlord finds new
tenants that are willing to pay the same amount that she’s
currently paying.” (Italics added.) On October 29, 2018, Rollins
sent another email congratulating White “on the purchase of
[her] new home in Woodland Hills” and informing her that a
“move-out inspection” would be performed when White vacated
the Studio City property. On November 23, 2018, White vacated
the property and moved to her new home in Woodland Hills.
3
On December 3, 2018, Kremerman furnished White with an
itemized statement indicating the following deductions from the
$25,000 security deposit, calculating an unpaid balance of
$87,280.06 owed by White:
• Balance of rent due for November 2018: $3,360
• Balance of future rent due December 1, 2018 through
March 31, 2019: $65,920 ($16,480 times four months)
• Cleaning fee: $200
• Floor refurbishment: $2,755.50
• Interior painting: $4,050
• Blinds, windows, lights, fixtures: $2,444.62
• Sinks, lavatories: $622.92
• Repair of crown molding, doors, sink, etc.: $4,810
• Replacement of missing items (popcorn machine,
Apple TV, telephones): $3,117.02
By March 6, 2019, Kremerman had not heard back from
White. His attorney sent her a letter requesting payment within
10 days and threatened to initiate a lawsuit if she failed to pay.
B. Civil Complaint
On April 16, 2019, Kremerman filed a complaint against
White alleging two causes of action: breach of the lease
agreement and negligence. Kremerman alleged that as a direct
and proximate result of White’s breach of the lease agreement “by
vacating the [Studio City property] before the lease expired and
failing to pay the unpaid rent”, he suffered damages. He alleged
White last paid rent for the month of October 2018, and she did
not pay any rent from November 2018 through March 2019. He
alleged the unpaid rent balance owed by White ($55,546), less the
$25,000 security deposit, totaled $30,546.
4
For the negligence cause of action, Kremerman alleged
White “damaged the premises and removed fixtures and
equipment” from the Studio City property, causing “extensive
damage.” As a result of White’s negligence, he allegedly incurred
expenses and costs for repairs to the property totaling
$18,000.06.
In addition to these damages, Kremerman requested
attorney fees and costs, as well as interest on all amounts past
due at the rate of 10 percent per annum.
C. Kremerman’s Attempts at Service of Process
A registered process server from Countrywide Process, LLC
filed a non-service report, declaring under penalty of perjury that
he made five attempts to serve White with the “Summons and
Complaint – Unlawful Detainer; Prejudgment Claim of Right To
Possession; Standing Order; Third Amended Standing Order and
Notice of Case Assignment” documents 3 at White’s Woodland
Hills property on April 16, 2019 at 7:16 p.m.; April 17, 2019 at
7:34 p.m.; April 18, 2019 at 4:16 a.m.; April 20, 2019 at 8:09 am.;
and April 21, 2019 at 1:46 p.m. The process server stated there
was no answer at the door during all five attempts at service.
The registered process server filed a second non-service
report, declaring under penalty of perjury that he completed a
stakeout at the Studio City property on May 11, 2019 in an
attempt to serve White, but he “did NOT see any signs of people
being [at] the property.” The non-service report also set out that
3 These are incorrect pleadings, as Kremerman had filed a
civil complaint for breach of lease agreement and negligence, not
unlawful detainer.
5
the process server again attempted to serve pleadings related to
an unlawful detainer action.
The same process server filed a third non-service report,
declaring under penalty of perjury that he completed a stakeout
at the Woodland Hills property from 6:55 p.m. until 10:23 p.m. on
May 14, 2019, but “there was NO ACTIVITY AT ALL.” The
process server was thus unable to serve the “Summons &
Complaint” pleadings.
On May 28, 2019, Kremerman filed an application for
service of process by publication, which the trial court denied on
May 30, 2019, finding there was “insufficient diligence shown.”
On July 9, 2019, the court set an order to show cause (OSC)
on October 29, 2019, as to Kremerman’s failure to file a proof of
service of summons. On October 28, 2019, one day before the
scheduled hearing, Kremerman filed a proof of service of
summons by substituted service.
In this proof of service, the process server stated the
following: On October 11, 2019 at 11:57 p.m., he left a copy of the
summons and complaint with “a competent member of the
household (at least 18 years of age) at the dwelling house or
usual place of abode of the party” and identified said person as
Sarah Plowden, an “authorized employee” at the Postal Annex
located at 23679 Calabasas Road in Calabasas, where White
maintained a private mailbox. To effectuate substituted service,
the process server “thereafter mailed (by first-class, postage
prepaid) copies of the documents” on October 11, 2019 from the
city of Van Nuys to the “authorized employee at ‘Postal Annex’ ”
at the Calabasas address.
6
D. Entry of Default and Default Judgment
On December 2, 2019, Kremerman filed a request for entry
of default, which the court immediately granted. Kremerman
also submitted to the court a proposed default judgment. The
court scheduled an OSC for hearing on February 5, 2020, as to
Kremerman’s requested default judgment.
On January 16, 2020, Kremerman’s request for entry of
default judgment was rejected by the court clerk. The following
week, Kremerman submitted a new request for the same relief.
On January 27, 2020, the trial court signed and entered a
default judgment for Kremerman, awarding him a total of
$71,823.77, which included $62,280.06 in damages, $2,581.99 in
attorney fees and costs, and $6,961.72 in interest. The trial court
also advanced and vacated the OSC set for hearing on February
5, 2020.
Kremerman applied for a writ of execution to levy White’s
bank accounts and the sum of $58,481.77 was subsequently
garnished from her bank accounts.
E. Motion to Vacate Default and Default Judgment
On May 26, 2020, White filed a motion to set aside the
default and the default judgment. She argued the default and
default judgment were void as a matter of law because service of
the summons was defective and deprived her of actual notice of
the action in time to respond. As a result, she argued, the levy of
her bank accounts pursuant to the default judgment should also
be set aside.
White provided a declaration in support of the motion,
which alleged the following:
7
She often paid one to two months’ rent in advance. She
provided as an exhibit a statement of account that showed she
made rent payments in advance via wire transfers. The
statement of account showed she had “a credit of $46,080” after
payment of rent on August 1, 2018. Monthly rent in the amount
of $16,480 was deducted from the credit in the account on
September 1, 2018 and October 1, 2018. The remaining credit of
$13,120 was deducted on November 1, 2018, leaving an unpaid
balance of $3,360 for the month of November 2018. The
statement included a note from the landlord that said: “Your
rent is paid up to Oct. 2018, please remit $3,360.00 on Nov. 1,
2018 to cover your Nov. 2018 rent.”
White declared she was “an excellent tenant who took very
good care of the interior and exterior of” the Studio City property.
She was “confident that the landlord would be able to find a new
tenant very quickly to pay $16,480 per month” because she kept
the Studio City property “in excellent condition and the housing
market was very strong in late 2018.”
After vacating the property, an inspection was conducted.
White admitted she had “accidentally damaged a sink” during
her tenancy, but “the remainder of the house only had normal
wear and tear.” White “dispute[d] that there was any damage to
the crown molding, sink countertop, lamps, or lights” at the
property. She also admitted that the movers took the popcorn
machine from the Studio City property to her new home in
Woodland Hills.
White argued Kremerman “unlawfully charged [her] for
future unpaid rent of $65,920 which negated his acknowledged
duty to mitigate by ‘find[ing] new tenants that are willing to pay
the same amount that [White was] currently paying.’ ” White
8
included as an exhibit the Zillow history of the Studio City
property, which showed that on December 6, 2018, Kremerman
listed the property for sale for $4.95 million, and then on
December 7, 2018, he listed it for rent for $22,500 per month,
“over $6,000 per month more than [White] had paid for rent.” On
December 17, 2018, the rental listing was removed. On January
9, 2019, the property was sold; escrow closed on March 5, 2019.
White argued “[h]ad [her] former landlord instead listed the
[property] for rent . . . for $16,480, he would have been able to
find a new tenant very quickly.” She also contended Kremerman
improperly sought future unpaid rent for the month of March
2019 when Kremerman “no longer even owned the leased
premises” as of March 5, 2019 when escrow closed.
White alleged she was never served with the summons and
complaint in this case. “In April 2019, [she] was involved in five
legal proceedings as the plaintiff or defendant” and retained
counsel for each proceeding. She “always inform[ed] [her] civil
attorney if [she has] been served with a new lawsuit” because she
needs to keep an excellent credit score. She claimed she first
learned about Kremerman’s lawsuit when one of her assistants
handed her a document in late January 2020 about an upcoming
default hearing set for February 5, 2020. She contacted her civil
attorney thereafter to represent her and contest the default at
the February 5, 2020 hearing; however, the hearing “never took
place,” leading her to prepare the instant motion to vacate.
White declared the Postal Annex located in Calabasas is
not her office or her usual place of business. She “do[es] not know
who Sarah Plowden is and [has] never met her.” She “never
authorized Ms. Plowden to accept service of process on [her]
behalf.” She also stated the Postal Annex in Calabasas was not
9
open to the public at 11:57 p.m. on October 11, 2019, and no one
at her home or usual place of abode was served with the
complaint and summons on October 11, 2019.
White declared she “never tried to evade service of process
in this case or any other case.” She argued the first non-service
report indicates the process server attempted to serve unlawful
detainer pleadings on her, when she “was not subject to an
‘Unlawful Detainer’ proceeding” by Kremerman. She also argued
that the second non-service report indicates the process server
completed the stake-out at the Studio City property, when
Kremerman “was well aware” that White had not lived there
since moving to the Woodland Hills home the previous year. She
stated she was out of town during the process server’s third
stake-out on May 14, 2019, as she was in New York City to
appear on the Wendy Williams show.
F. Kremerman’s Opposition to the Motion to Vacate
On June 15, 2020, Kremerman filed his opposition to the
motion to vacate. He argued that after “making over six
attempts at personal service [and] conducting a stake-out,”
Kremerman “conducted an extensive search . . . to locate an
alternative address” for White and discovered she “maintained a
private mailbox with a commercial mail receiving agency”, i.e.,
the Postal Annex in Calabasas. Kremerman argued that service
“was effectuated pursuant to [section] 415.20” when the process
server left a copy of the summons and complaint with an
authorized employee of Postal Annex—Sarah Plowden. He
argued there is no basis for concluding the judgment was void, as
White was “duly served by means of substituted service.”
10
Kremerman submitted a supporting declaration by his
attorney, who stated that his office hired a registered process
server who attempted to serve White “at different hours of the
day” on different dates but was unable to because White “failed to
respond to [his] attempts to knock on the door or respond to her
name being called.” The process server was instructed to conduct
an extensive search “to locate alternative addresses for” White, at
which point White’s private mailbox at the Postal Annex was
discovered.
Kremerman also provided a declaration from Sarah
Plowden, who stated she “placed the copy of the documents
delivered to [her] into [the] customer’s mailbox” on October 11,
2019. Plowden further stated the documents were mailed to the
customer’s mailbox by first class mail on October 31, 2019.
G. Trial Court’s Ruling
On June 26, 2020, the trial court heard argument and
denied appellant’s motion to vacate the default and default
judgment. 4 The trial court ordered the levying officer to release
the garnished funds to Kremerman as payment on the judgment.
The minute order does not include any findings.
White timely appealed.
DISCUSSION
On appeal, White argues the default and default judgment
entered against her are void as a matter of law because service of
the summons was defective and, therefore, the trial court lacked
4 The record on appeal does not include a reporter’s
transcript of the June 26, 2020 hearing.
11
personal jurisdiction over her. She argues “facial defects on the
Proof of Service of Summons” rebut the presumption of proper
service and prove Kremerman failed to comply with service of
process requirements. White requests that we reverse the trial
court’s ruling and vacate the default and default judgment
pursuant to section 473, subdivision (d), and section 473.5. She
also asks us to reverse and set aside the levy of her bank account
pursuant to the default judgment.
A. Standard of Review
Section 473, subdivision (d) provides a trial court may, on
motion of either party after notice to the other party, set aside
any void judgment or order; inclusion of the word “may” in the
language of section 473, subdivision (d) makes it clear that a trial
court retains discretion to grant or deny a motion to set aside a
void judgment. (Cruz v. Fagor America, Inc. (2007)
146 Cal.App.4th 488, 495 (Cruz).) However, the trial court has no
statutory power under section 473, subdivision (d) to set aside a
judgment that is not void. (Id. at pp. 495–496.) Thus, the
reviewing court faces two separate determinations when
considering an appeal founded on section 473, subdivision (d):
whether the judgment is void and, if so, whether the trial court
properly exercised its discretion in setting (or not setting) it
aside. (Nixon Peabody LLP v. Superior Court (2014)
230 Cal.App.4th 818, 822.) The trial court’s determination
whether a judgment is void is reviewed de novo; its decision
whether or not to set aside a void order is reviewed for abuse of
discretion. (Ibid.; Pittman v. Beck Park Apartments Ltd. (2018)
20 Cal.App.5th 1009, 1020 (Pittman); see also Cruz, at
pp. 495-496.)
12
B. Applicable Law
“The court may . . . on motion of either party after notice to
the other party, set aside any void judgment or order.” (§ 473,
subd. (d).) Generally, defendants have six months from entry of
judgment to move to vacate. (Id., subd. (b).) But, if “the
judgment is void on its face, then the six month limit set by
section 473 to make other motions to vacate a judgment does not
apply.” (National Diversified Services, Inc. v. Bernstein (1985)
168 Cal.App.3d 410, 414.)
“ ‘A judgment or order is said to be void on its face when the
invalidity is apparent upon an inspection of the judgment-roll.’ ”
(Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th
1426, 1441 (Dill).) This inquiry, however, “does not hinge on
evidence: A void judgment’s invalidity appears on the face of the
record.” (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 181.)
The due process clauses of the United States and California
Constitutions require that a party be given reasonable notice of a
judicial action or proceeding. (In re Marriage of Goddard (2004)
33 Cal.4th 49, 54 (Goddard).) To establish personal jurisdiction,
compliance with statutory procedures for service of process is
essential; if a default judgment was entered against a defendant
who was not served with a summons as required by statute, the
judgment is void, as the court lacked jurisdiction in a
fundamental sense over the party and lacked authority to enter
judgment. (OC Interior Services, LLC v. Nationstar Mortgage,
LLC (2017) 7 Cal.App.5th 1318, 1330–1331.)
To determine “whether an order [or judgment] is void for
purposes of section 473, subdivision (d), courts distinguish
between orders [or judgments] that are void on the face of the
record and orders [or judgments] that appear valid on the face of
13
the record but are shown to be invalid through consideration of
extrinsic evidence. ‘This distinction may be important in a
particular case because it impacts the procedural mechanism
available to attack the judgment [or order], when the judgment
[or order] may be attacked, and how the party challenging the
judgment [or order] proves that the judgment is void.’ ” (Pittman,
supra, 20 Cal.App.5th at p. 1020.) A judgment “is considered void
on its face only when the invalidity is apparent from an
inspection of the judgment roll or court record without
consideration of extrinsic evidence.” (Id. at p. 1021.) When a
default judgment has been taken, the judgment roll consists of
“the summons, with the affidavit or proof of service; the
complaint; the request for entry of default . . . , and a copy of the
judgment.” (§ 670, subd. (a).) If the invalidity can be shown only
through consideration of extrinsic evidence, such as declarations
or testimony, the order/judgment is not void on its face.
(Pittman, at p. 1021.)
Our Supreme Court has observed that although “the term
‘jurisdiction’ is sometimes used as if it had a single meaning, we
have long recognized two different ways in which a court may
lack jurisdiction.” (People v. Ford (2015) 61 Cal.4th 282, 286
(Ford).) “A court lacks jurisdiction in a fundamental sense when
it has no authority at all over the subject matter or the parties, or
when it lacks any power to hear or determine the case.” (Ibid.)
Even when a court has fundamental jurisdiction, however,
the Constitution, a statute, or relevant case law may constrain
the court to act only in a particular manner, or subject to certain
limitations. (Ford, supra, 61 Cal.4th at pp. 286–287.) When a
trial court has fundamental jurisdiction but fails to act in the
manner prescribed, it is said to have acted “ ‘in excess of its
14
jurisdiction.’ ” (Id. at p. 287.) Because an ordinary act in excess
of jurisdiction does not negate a court’s fundamental jurisdiction
to hear the matter altogether, such a ruling is treated as valid
until set aside. (Ibid.) A party may be precluded from seeking to
set aside such a ruling because of waiver, estoppel, or the passage
of time. (Ibid.) Thus, error in rendering a judgment or order
generally falls into two categories: “A court can lack fundamental
authority over the subject matter, question presented, or party,
making its judgment void, or it can merely act in excess of its
jurisdiction or defined power, rendering the judgment voidable.”
(Goddard, supra, 33 Cal.4th at p. 56.)
C. Analysis
As indicated, White’s motion to set aside the default and
default judgment and vacate the resulting levy of her funds was
brought pursuant to section 473, subdivision (d). White contends
“an independent review of the record demonstrates that
respondent failed to comply with statutory service requirements
. . . and that respondent’s one attempt at substitute service was
fatally defective.” She contends substitute service under section
415.20 was not properly completed as the Postal Annex address
was not her home or dwelling place, nor her usual place of
business. White argues the trial court therefore “lacked
jurisdiction to enter a default judgment against [White] and
lacked jurisdiction to order the release of levied funds by the
sheriff to respondent.”
We agree. This is an issue of fundamental jurisdiction. By
merely looking at the judgment roll, including Kremerman’s
complaint, the non-service reports, and proof of service of
summons by substituted service, we conclude the trial court acted
without authority in entering judgment against White.
15
“[C]ompliance with the statutory procedures for service of
process is essential to establish personal jurisdiction. [Citation.]
Thus, a default judgment entered against a defendant who was
not served with a summons in the manner prescribed by statute
is void.” (Dill, supra, 24 Cal.App.4th at p. 1444.) As mentioned
above, under section 473, subdivision (d), the court may “set aside
a default judgment which is valid on its face, but void, as a
matter of law, due to improper service.” (Ellard v. Conway (2001)
94 Cal.App.4th 540, 544.)
Section 415.20, subdivisions (a) and (b) authorize substitute
service in lieu of personal delivery. “If a copy of the summons
and complaint cannot with reasonable diligence be personally
delivered to the person to be served, . . . 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.
Service of a summons in this manner is deemed complete on the
10th day after the mailing.” (§ 415.20, subd. (b).)
“Notwithstanding subdivision (b) [of section 415.20], if the
only address reasonably known for the person to be served is a
private mailbox obtained through a commercial mail receiving
agency, service of process may be effected on the first delivery
16
attempt by leaving a copy of the summons and complaint with
the commercial mail receiving agency in the manner described in
subdivision (d) of Section 17538.5 of the Business and Professions
Code.” (§415.20, subd. (c).) Per Business and Professions Code
section 17538.5, subdivision (d)(1), “[u]pon receipt of any process
for any mailbox service customer, the [commercial mail receiving
agency (CMRA)] owner or operator shall (A) within 48 hours after
receipt of any process, place a copy of the documents. . . into the
customer’s mailbox . . . , and (B) within five days after receipt,
send all documents by first-class mail, to the last known home or
personal address of the mail receiving service customer. . . .
Service of process upon the mail receiving service customer shall
then be deemed perfected 10 days after the date of mailing.”
(Bus. & Prof. Code, § 17538.5, subd. (d)(1).)
Based on these statutes, we find the following facial defects
apparent on the judgment roll. First, we find Kremerman did not
undertake diligent efforts to serve White. The first non-service
report states the process server attempted to serve White on
April 16, 17, 18, 20, and 21, 2019 with unlawful detainer
pleadings and not the summons and complaint for the breach of
contract action. The second non-service report provides the
process server attempted to serve White at the Studio City
property—nearly six months after she had moved out of that
property and moved to her Woodland Hills home. 5 The third non-
service report describes another attempt to serve White, this time
with the correct pleadings and at the correct address in Woodland
5 Kremerman’s complaint, part of the judgment roll, included
White’s move-out date of November 23, 2018.
17
Hills, on May 14, 2019. However, the trial court’s May 30, 2019
order thereafter found the service attempts to date constituted
“insufficient diligence.” Ordinarily, two or three attempts at
personal service at a proper place and with correct pleadings
should fully satisfy the requirement of reasonable diligence and
allow substituted service to be made. (Bein v. Brechtel-Jochim
Group, Inc. (1992) 6 Cal.App.4th 1387, 1391–1392.) Based on the
foregoing, Kremerman showed no “reasonable diligence” in his
attempts to personally serve White with the summons and
complaint so as to effect substituted service.
Second, on the face of the proof of service of summons by
substituted service, the process server checked the box indicating
he left a copy of the summons and complaint with “a competent
member of the household (at least 18 years of age) at the dwelling
house or usual place of abode of the party” and identified said
person as Sarah Plowden, an “authorized employee” at the Postal
Annex in Calabasas. It is undisputed that the Postal Annex is
not White’s household or usual place of abode, nor was Sarah
Plowden a competent member of White’s household. The process
server thereafter mailed via first-class mail a copy of the
summons and complaint to the same Postal Annex address, in
care of Sarah Plowden, and not to White’s actual home address in
Woodland Hills, as indicated in the proofs of service filed October
28, 2019. This does not comply with the statute permitting
substituted service at one’s dwelling house or usual place of
abode.
Third, section 415.20, subdivision (c) provides that
substitute service may be effectuated on an individual by leaving
a copy of the summons and complaint with a CMRA “if the only
address reasonably known for the person . . . is a private mailbox
18
obtained through a commercial mail receiving agency.” (§ 415.20,
subd. (c), italics added.) Here, it is undisputed that Kremerman
was aware that White had another address, i.e., the address to
her Woodland Hills home, as he included her home address on
the security deposit itemization form and in the March 6, 2019
letter to White, which were exhibits to his complaint—all part of
the judgment roll. The third non-service report regarding service
attempted on May 14, 2019 also demonstrates Kremerman had
knowledge of White’s Woodland Hills home address.
Fourth and finally, California law requires the CMRA to
place a notice or copy of the documents in the customer’s mailbox
within 48 hours and to send the documents by first-class mail
within five days after receipt to the customer’s address. (Bus. &
Prof. Code, § 17538.5, subd. (d)(1); see also § 415.20, subd. (c).)
There is no evidence in the judgment roll that indicates
whether the referenced statutory requirements were met. On
this point, Kremerman relies on the evidence and argument he
presented to the trial court, that is, that substitute service was
valid and therefore it supported the trial court’s denial of White’s
motion to vacate. We therefore review the record before us. The
CMRA employee Sarah Plowden stated in her declaration that
she received the summons and complaint on October 11, 2019
and “placed the copy of the documents delivered to [her] into [the]
customer’s mailbox” that same day—within the required 48 hours
after receipt. However, Plowden did not mail the documents to
the customer’s address by first-class mail within the required
five-day time period. Instead, she stated in her declaration that
she sent the documents via first-class mail on October 31, 2019—
which is 20 days after Plowden’s receipt of the documents. Thus,
19
we find the trial court erred when it concluded service was
proper.
We also conclude the trial court abused its discretion in
denying White’s motion to vacate the void judgment. On this
record White had no proper notice of the action against her and
when she did learn of the action through a third party, she
promptly moved to vacate the default and default judgment. It is
unclear to us why the trial court concluded respondent’s attempts
at service satisfied due process. We conclude they don’t.
The trial court did not obtain personal jurisdiction over
White due to improper service of the summons and complaint.
White was “under no duty to act upon a defectively served
summons.” (Kappel v. Bartlett (1988) 200 Cal.App.3d 1457,
1466.) As we have concluded the trial court lacked jurisdiction
over White to adjudicate the action, we decline to address her
other challenges to the trial court’s ruling.
As a final note, we address White’s contention raised
during oral argument that, in addition to ordering Kremerman to
return the improperly levied funds in the amount of $58,481.77,
we award interest at the legal rate of 10 percent on the levied
funds. We take no position on whether or not to assess interest.
We remand the matter to the trial court with directions to
determine whether interest should be assessed, and if it is
assessed, to determine what statute and rate apply, as well as
the proper date from which interest should accrue.
20
DISPOSITION
The trial court’s order denying White’s motion to set aside
the default and default judgment is reversed. We remand the
matter with instructions to the trial court to vacate entry of
default and the default judgment, to set aside the order
authorizing the levy and garnishment of White’s funds to satisfy
the judgment, and to order Kremerman to reimburse White any
such garnished funds. We also direct the trial court to determine
whether interest on the levied funds should be assessed and
awarded to White, and if so, to similarly determine the applicable
statute, rate, and date of accrual. Appellant Angela White is
awarded costs on appeal.
STRATTON, J.
We concur:
GRIMES, Acting P. J.
OHTA, J. *
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
21
Filed 11/8/21
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
MICHAEL KREMERMAN, B307347
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 19BBCV00331)
v.
ORDER CERTIFYING OPINION
ANGELA WHITE, FOR PUBLICATION
Defendant and Appellant. [NO CHANGE IN JUDGMENT]
THE COURT:
The opinion in the above-entitled matter filed on October 15, 2021, was
not certified for publication in the Official Reports. For good cause, it now
appears that the opinion should be published in the Official Reports and it is
so ordered.
There is no change in the judgment.
________________________________________________________________________
GRIMES, Acting P. J. STRATTON, J. OHTA, J. *
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.