Perlman Law v. Hart CA2/3 ( 2021 )

Filed 12/10/21 Perlman Law v. Hart CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION THREE
PERLMAN LAW, INC., B302441
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC640412)
v.
SARA HART et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, Robert B. Broadbelt, III, Judge. Affirmed.
Sara Hart, in pro. per.; and Afshin Siman for Defendant
and Appellant. [Retained.]
Guy Hart, in pro. per.; K&L Law Group and Marc Lazo for
Defendant and Appellant. [Retained.]
Manahan Flashman & Brandon, David M. Brandon;
Perlman Law and Deborah Perlman, Inc. for Plaintiff and
Respondent.
_________________________
Plaintiff Perlman Law, Inc. (Perlman) sued defendants Guy
Hart and Sara Hart 1 to recover legal fees. A process server
substitute-served the summons and complaint on security guards
at Guy’s and Sara’s respective residences. When the Harts failed
to respond to the complaint, a default and default judgment were
entered against them. The trial court thereafter denied their
motion to set aside the default and default judgment on the
grounds that they had been properly served and had actual notice
of the action. The Harts now appeal from the order denying their
motion. We affirm.
BACKGROUND
I. Service on the Harts
According to the allegations of the operative pleading, Sara
and Guy retained Perlman in 2014 to sue Don Hart, who is Sara’s
son and Guy’s brother. When the Harts failed to pay Perlman,
Perlman withdrew from representing the Harts and sued them
for breach of contract and common counts.
In March 2017, two proofs of service of the summons and
first amended complaint were filed, one as to Sara and one as to
Guy. The first page of the first proof of service identified Sara as
the person to be served at an address on Via Medici in
Northridge.2 However, the process server’s declaration stated
that Guy was the person served at that address. The process
1
We refer to the Harts by their first names to avoid confusion,
and we also refer to them collectively as the Harts.
2 As the trial court later noted, the proofs of service contain
errors, primarily that the declaration for Sara’s proof of service
appears to have been attached to Guy’s proof of service and vice
versa.
2
server further declared that she had tried to serve Guy twice in
January 2017, and both times the security guard allowed the
process server to go to Guy’s unit, which was dark. Nobody
responded to the process server’s knocks on the door and ringing
the doorbell, and she saw no movement inside the home.
On a third attempt on a morning in February 2017, the
security guard told the process server that Guy’s car was in its
usual spot, but she had not seen him go to his car, which he
usually did around 10:00 a.m. The process server rang the
doorbell but got no response, even though she could see lights on
inside. She waited for Guy to leave at his usual time, and when
he didn’t, she rang the doorbell and noticed that the light was
now off. After waiting a few more minutes, she rang the doorbell
again but did not hear it ring, which suggested to her that it had
been disabled. The security guard said that many people had
tried to serve Guy, including the Sheriff’s Department, but he
never answered the door. On the fourth attempt at service,
nobody answered the door, and no lights were on inside the unit.
The process server therefore substitute-served the security guard.
The summons and first amended complaint were mailed to Guy.
Similar events occurred when the same process server tried
to serve Sara.3 On the process server’s first attempt, a security
guard allowed her access to the single family home. The windows
were almost completely covered with paper. No cars were in the
driveway, nobody responded to a knock on the door, and the
process server did not see any movement through the front door.
3The first page of the proof of service for Sara identified Guy as
the person to be served and listed the address as on Neilson Way
in Santa Monica. However, the declaration identified Sara as the
person served and listed Via Medici in Northridge as the address.
3
The security guard told the process server that all visitors were
announced by the front gate, so any unannounced person who
knocked on the door was suspect. The security guard also said
that Sara evaded service.
On the process server’s second attempt at personal service,
a car was in the driveway, and she could see children and an
older teen or adult inside the house. But when the process server
pounded on the door, all sound and movement inside stopped.
She waited 15 minutes for someone to come out, but nobody did.
When the process server returned two hours later, the car was no
longer in the driveway, nobody answered the door, and she saw
no movement and heard no sounds from inside the house.
On the third attempt, a security guard let the process
server onto the property. The same car was in the driveway, and
lights were on inside the house. She could hear a man, woman,
and children speaking, and the adults had an Eastern European
accent. When the process server knocked on the door, talking
ceased and then resumed in hushed tones. Nobody came to the
door, so the process server asked the security guard to call the
house. He called and told the person who answered that a
process server was there with legal documents and that if they
were not given to anyone at the house, they would be left with the
security guard. The security guard spoke with the person for
about a minute. When he hung up, he told the process server
that he had been instructed to say “she” wasn’t home and not due
back until next Monday or Tuesday. The process server then
gave the summons and complaint to the security guard. The
summons and first amended complaint were mailed to Sara.
4
II. The motion to set aside entry of default and default
judgment.
The clerk entered Guy’s default on April 26, 2017 and
Sara’s default on May 23, 2017. On October 18, 2017, the trial
court entered a monetary judgment in Perlman’s favor against
the Harts.
On May 8, 2018, the Harts moved to set aside the default
and default judgment under Code of Civil Procedure 4 sections
473, subdivisions (b) and (d), and 473.5 on the ground that
service was not properly executed per section 415.20 and they
had no actual notice of the action.5 They argued that the proofs
of service were defective in that substitute service on the security
guards was improper. And, as to Guy, the proof of service listed
Sara’s, rather than Guy’s address. Moreover, Perlman never
served the Harts’ attorney.
Guy and Sara supported their motion with declarations, in
which they denied receiving notice of the case and of the entry of
default and claimed to have learned of the default judgment only
when Sara’s bank account was “arrested.” They believed in good
faith that their attorney Armen Shaghzo would be served with
legal documents on any matter. Shaghzo submitted a declaration
stating that the Harts had retained him when Perlman withdrew
from representing them in 2014. He was not served with any
4
All further undesignated statutory references are to the Code of
Civil Procedure.
5
The Harts filed their motion, Perlman opposed it, and the trial
court (Hon. Holly Fujie) issued a tentative order denying it.
However, the trial court then granted the Harts’ peremptory
challenge under section 170.6, the matter was reassigned, and
the Harts filed new moving papers.
5
documents regarding Perlman’s case against the Harts. But he
also stated that he stopped representing the Harts in “April/May
2017.”
Perlman opposed the motion, arguing that substitute
service on the security guards was proper under section 415.20,
and because service was proper, the Harts could not claim
mistake of fact or excusable neglect or lack of actual notice.
Moreover, neither Sara nor Guy denied that they lived at the
addresses at which they were served, and a grant deed showed
that Guy owned the condominium on Neilson Way in Santa
Monica. Perlman also argued it was not required to serve
Shaghzo, who had not declared that he would have accepted
service. Finally, Perlman argued that the Harts were not
entitled to relief under section 473, subdivision (b), because their
motion was untimely.
III. Ruling on motion
The trial court denied the motion.6 It first found that the
judgment was not void under section 473, subdivision (d), because
Perlman had substantially complied with section 415.20 by
substitute serving the security guards. The trial court noted that
the process server’s declarations of diligence appeared to attach
the wrong proof of service; that is, the declaration attached to the
proof of service for Guy related to service on Sara and vice versa.
Nonetheless, the trial court credited the process server’s
declarations. The trial court also noted that the Harts failed to
6
The Harts moved for reconsideration of the trial court’s order
denying the motion to set aside default and default judgment,
and the reconsideration motion was denied. They do not raise
any issue regarding the order denying the motion for
reconsideration.
6
explain why substitute service at the Santa Monica address was
improper, as there was no evidence the Santa Monica address
was not Guy’s address when service of process was effectuated.
Finally, the trial court rejected the argument that the summons
and complaint should have been served on Shaghzo because there
was no evidence he was authorized to receive service of process
on their behalf.
Second, the trial court found that the application for relief
under section 473, subdivision (b), was untimely.
Third, relying on the process server’s uncontradicted
declarations, the trial court found that the Harts were not
entitled to relief under section 473.5, which requires lack of
actual notice of an action that was not caused by avoidance of
service or inexcusable neglect.
Finally, the trial court denied equitable relief, finding that
there was no fraud in connection with service of process. In
addition, the Harts were not entitled to notice of hearings that
occurred after their default.
This appeal followed the trial court’s denial of the motion.7
DISCUSSION
The Harts sought relief under sections 473 and 473.5. As
relevant here, those sections provide as follows. First, section
473, subdivision (b), permits a party to be relieved from a
judgment or other proceeding entered as a result of mistake,
inadvertence, surprise, or excusable neglect, and relief under this
section must be sought within a reasonable time, but in no case
7To the extent appellants’ appendix contains documents and
notations that were not before the trial court, they are improper,
and we do not consider them.
7
exceeding six months after the judgment or other order was
entered. Second, section 473, subdivision (d), permits a court to
set aside any void judgment or order. A judgment is void if the
court “ ‘lack[s] fundamental authority over the subject matter,
question presented, or party.’ ” (Lee v. An (2008) 168 Cal.App.4th
558, 565.) Third, section 473.5 provides that a court may set
aside a judgment “[w]hen service of a summons has not resulted
in actual notice to a party in time to defend the action and a
default or default judgment has been entered against him or her
in the action.”
We typically review an order denying a motion to vacate a
judgment for an abuse of discretion. (J.M. v. G.H. (2014)
228 Cal.App.4th 925, 940; Austin v. Los Angeles Unified School
Dist. (2016) 244 Cal.App.4th 918, 929.) However, where the
order is based on the trial court’s determination that the
judgment is void, we review that determination de novo. (Grados
v. Shiau (2021) 63 Cal.App.5th 1042, 1049; Pittman v. Beck Park
Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1020.)
In this case, the premise underlying all theories of relief
was that the Harts were not properly served with the summons
and first amended complaint.8 However, strict compliance with
process statutes is not required; instead, they should be liberally
construed to effectuate service and to uphold the court’s
jurisdiction if the defendant received actual notice. (Gibble v.
Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 313.)
Substantial compliance is sufficient. (Ibid.) The process statutes
8The Harts also argue that they never received notice of post-
default proceedings but cite no authority showing that they were
entitled to such notice or are entitled to relief for such lack of
notice under the sections on which their motion was based.
8
provide various ways a plaintiff may serve a defendant, including
personal delivery of the summons and complaint (§ 415.10). But
if the summons and complaint cannot with reasonable diligence
be personally delivered, then they may be left at the person’s
dwelling house, usual place of abode, or usual mailing address “in
the presence of a competent member of the household or a person
apparently in charge.” (§ 415.20, subd. (b).)
Bein v. Brechtel–Jochim Group, Inc. (1992) 6 Cal.App.4th
1387 (Bein), addressed whether substitute service on a security
guard satisfies section 415.20, subdivision (b). In that case, the
plaintiff tried to serve the defendants at their residence, which
was in a gated community. Each time the process server tried to
access the gated community, the gate guard denied access. (Bein,
at pp. 1390–1391.) The process server finally substitute-served
the guard. After a default judgment was entered against the
defendants, they challenged the trial court’s jurisdiction, arguing
that service was ineffective.
The Court of Appeal rejected that argument. It first noted
that two or three attempts at personal service satisfied the
reasonable diligence prerequisite. (Bein, supra, 6 Cal.App.4th at
p. 1391.) Next, liberally construing the process statutes, the
Court of Appeal found that a guard at the entrance of a gated
community can be considered a competent member of the
household and the person in charge under section 415.20,
because the guard’s relationship to the defendants made it more
likely than not that he would deliver the papers to them. (Bein,
at p. 1393.) Bein thus observed, “Litigants have the right to
choose their abodes; they do not have the right to control who
may sue or serve them by denying them physical access.” (Ibid.)
9
As did the Bein defendants, Guy and Sara lived in gated
communities. The process server tried to personally serve Guy
four times and Sara three times. This satisfied the reasonable
diligence requirement, especially considering the evidence that
the Harts were avoiding service. (See, e.g., Bein, supra,
6 Cal.App.4th at pp. 1390–1391; Espindola v. Nunez (1988)
199 Cal.App.3d 1389, 1391–1393 [three attempts at personal
service satisfied reasonable diligence requirement].) The
evidence also established that the security guards were familiar
with personal details about Guy and Sara, for example, what car
Guy drove, when he usually left his residence, that he never
answered the door, and that Sara evaded service. Moreover, the
security guard at Sara’s gated community was given instructions,
just as any member of a household might be; that is, when the
security guard called the residence, the person who answered
instructed the security guard to tell the process server that “she”
was not home. This shows that the security guards controlled
access to the residences, announced visitors, and were familiar
with the residents. As such, the security guards were competent
members of the households or persons apparently in charge
within the meaning of section 415.20, subdivision (b).
Notwithstanding Bein, the Harts argue that their counsel,
Shaghzo, should have been served. However, the Harts’ evidence
merely shows that he was retained to represent them in a
separate matter, and he never stated that he was authorized to
accept service in this case or would have done so. The Harts’
reliance on California Rules of Court, rule 1.21(a), therefore does
not help them, because it merely provides that if a party is
represented, service is effected by serving the party’s attorney.
Even if Shaghzo would have accepted service, that rule does not
10
preclude service of a summons and complaint per the process
statutes.9
Next, the trial court did not abuse its discretion by denying
relief under section 473, subdivision (b), which requires mistake,
inadvertence, surprise, or excusable neglect, and under section
473.5, which requires a lack of actual notice not caused by
avoidance of service or inexcusable neglect (Trackman v. Kenney
(2010) 187 Cal.App.4th 175, 180).
First, relief under section 473, subdivision (b), must be
sought no later than six months after the judgment or other order
was taken. The Harts first moved to set aside the entry of
default and default judgment on May 3, 2018. This was more
than six months after defaults had been entered against Guy on
April 26, 2017 and against Sara on May 23, 2017, and more than
six months after entry of default judgment on October 18, 2017.
The application for relief was therefore untimely.
Second, even were the application timely, relief under
section 473, subdivision (b), and 473.5 was properly denied on the
merits. Credibility determinations are within a trial court’s
purview (Pelayo v. J. J. Lee Management Co., Inc. (2009) 174
Cal.App.4th 484, 493), and the trial court here credited the
process server’s declarations, notwithstanding the errors they
contained. Those declarations showed that the Harts were
avoiding service. Lights on at Guy’s residence were turned off
9
The Harts also argue that entry of default and default judgment
was improper because Perlman failed to comply with Business
and Professions Code section 6201, which requires an attorney to
give a client written notice of the arbitrability of fee disputes.
While this might have been a defense to Perlman’s action, the
Harts cite no authority that compliance with that section is a
prerequisite to the entry of default and default judgment.
11
when the process server knocked, Guy’s car was in the driveway,
the process server saw people and heard voices in Sara’s home,
and both security guards suggested that the Harts evaded
service. Although the Harts cursorily denied in their declarations
having received actual notice of the action, they did not deny
anything in the process server’s declarations, including that they
lived at the listed addresses and were home when service was
attempted, nor did they proffer evidence to contradict the
declarations.10 The Harts therefore failed to show any excusable
neglect and lack of actual notice not due to avoidance of service.
For this reason, the trial court properly declined to exercise
its inherent equitable power to set aside the default and default
judgment for extrinsic fraud or mistake, given the absence of a
showing of extrinsic fraud or mistake. (See generally, Rodriguez
v. Cho (2015) 236 Cal.App.4th 742, 749–750 [equitable relief
requires satisfactory excuse for not presenting defense in first
place].)
10
The Harts assert in their opening brief on appeal that the
process server could not have seen a car in Guy’s driveway
because the residence on Neilson Way does not have a driveway.
However, they did not raise this dispute in their declarations
below and therefore may not raise it now.
12
DISPOSITION
The order is affirmed. Perlman Law, Inc. may recover its
appellate costs.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
VIRAMONTES, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
13