Bearden v. Durden CA2/4 ( 2023 )

Filed 6/27/23 Bearden v. Durden CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
SHAKEDRA BEARDEN et al., B321214
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No. 21STCV21404)
v.
NASHAWN DURDEN et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of
Los Angeles County, Curtis A. Kin, Judge. Affirmed.
Law Offices of Stephen L. Backus and Stephen L. Backus
for Defendants and Appellants.
The Brinton Firm and Matthew L. Brinton for Plaintiffs
and Respondents.
Plaintiffs and respondents Shakedra Bearden and Herman
Gaither filed a wrongful eviction action against their landlords,
defendants and appellants Nashawn Durden and Valiant Group
of California, LLC (Valiant). After attempting personal service at
Durden’s residence, respondents served Durden and Valiant by
substitute service at Valiant’s designated address for service of
process. Respondents obtained entry of default and then a
default judgment against appellants.
Appellants subsequently appeared and filed a motion to set
aside the default judgment. They argued that the default
judgment was void because they were not properly served. They
also sought relief pursuant to Code of Civil Procedure section
473.5. subdivision (b) (section 473.5(b)),1 asserting they lacked
actual notice of the action, and section 473, subdivision (b)
(section 473(b)), on the basis that any failure to respond was due
to mistake, inadvertence, surprise, or excusable neglect.
The trial court denied the motion to set aside the default
judgment, concluding that respondents had properly served
appellants and that appellants had not demonstrated a right to
relief from default. Appellants appealed, raising the same
arguments regarding service. We conclude that the trial court
did not err in refusing to set aside the default judgment. We
therefore affirm.
BACKGROUND
I. Entry of Default and Default Judgment
Respondents filed a complaint against appellants on June
7, 2021, alleging that they and their two children had been
tenants since 2018 in an apartment on West 106th Street (the
1All further statutory references are to the Code of Civil
Procedure unless otherwise indicated.
2
apartment complex). Durden was the landlord, property
manager, “and former legal owner” of the apartment complex. He
also lived in another unit in the complex. Respondents alleged
that Durden also used the alias Donovan McCloud, including on
one of their lease agreements. According to respondents, Valiant
acquired title to the apartment complex from Durden in August
2020 and they paid rent to Valiant.
Respondents alleged that they had numerous problems
with their apartment, including pests, intermittent hot water,
and other plumbing issues. In mid-2020, their complaints
resulted in several citations to appellants from the Los Angeles
County Public Health Department. Respondents alleged that
Durden retaliated by verbally harassing them, destroying their
security camera and throwing it at Bearden, boarding their
apartment windows, and welding their door shut. On October 21,
2020, respondents gained entry to their apartment with the help
of the Los Angeles County Sheriff’s Department. Durden was
arrested for his conduct and respondents moved into a motel
because they were afraid to remain in their apartment.
In their complaint, respondents asserted causes of action
for negligence, breach of lease, breach of implied warranty of
habitability, retaliatory eviction in violation of Civil Code section
1942.5, interference with lawful occupancy in violation of Civil
Code section 789.3, and wrongful eviction. They sought an
estimated $600,000 in actual damages, as well as statutory
damages and attorney fees.
Respondents filed proof of service forms on August 10, 2021
reflecting service on both appellants of the “Summons;
Complaint; Civil Case Cover Sheet, Notice of Case Assignment;
First Amended General Order; Statement of Damages x2.” The
3
proof of service for Durden stated that he was served by
substituted service on July 13, 2021 at 6230 Wilshire Blvd., Suite
4400 in Los Angeles, the location of Mailbox Depot, a private
mailbox facility. On the proof of service, the process server
declared that he left the documents with “Angel Adama/Manager
Per CCP 415.20,” and checked the box under paragraph 5.b.(1)
stating that Adama was “a person at least 18 years of age
apparently in charge at the office or usual place of business of the
person to be served. I informed him or her of the general nature
of the papers.”2 According to the accompanying proof of service
by mail, the process server also mailed a copy of the “Summons;
Complaint; Civil Case Cover Sheet; Notice of Case Assignment;
First Amended General Order” to Durden at the Mailbox Depot
address on July 13, 2021.
On the proof of service for Valiant, the process server
stated that the documents were served on Durden, as agent for
service, by substituted service on June 14, 2021 at the Mailbox
Depot. The server indicated that the documents were left with
Eric Hong, Manager/Person in charge, and checked the box under
paragraph 5.b.(1). Respondents also filed a proof of service by
mail showing that the documents were mailed to Valiant at the
Mailbox Depot the same day.
On September 29, 2021, respondents filed a request for
entry of default for appellants. Respondents provided a proof of
2 As we discuss further post, it is undisputed that the
server should have checked the box in paragraph 5.b.(3) for the
proofs of service on Durden and Valiant. That paragraph states
that the documents were left with “a person of at least 18 years of
age apparently in charge at the usual mailing address of the
person to be served, other than a United States Postal Service
post office box.”
4
service reflecting that they had mailed a copy of the request for
entry of default form to appellants at the Mailbox Depot address
on September 29, 2021. The clerk entered default the same day.
On December 3, 2021, respondents filed a request for
default judgment. They included declarations from Bearden,
Gaither, and their attorney; a summary of the case; and a
statement of damages in support of their request for default
judgment. The statement of damages, dated June 7, 2021, sought
$200,000 for pain and suffering, $400,000 for emotional distress,
and $50,000 for the alleged breaches of Civil Code sections 789.3
and 1942.5. In the December 2021 request for default judgment,
respondents explained they were now seeking a total of
$356,018.60 in damages, costs, and attorney fees against
appellants. Respondents served the request for default judgment
and accompanying documents on appellants by mail on December
3, 2021 to the Mailbox Depot address.
The trial court entered default judgment for respondents
and against appellants on December 20, 2021. The default
judgment awarded respondents $356,018.60 in damages, attorney
fees, and costs. Respondents served notice of entry of judgment
on appellants by mail on December 20, 2021 to the Mailbox Depot
address.
II. Motion to Set Aside Default Judgment
Appellants filed a motion to “set aside/vacate default and/or
default judgment” on January 27, 2022. They argued that service
of the summons and complaint was improper as to Durden for
several reasons: (1) respondents failed to make diligent attempts
at personal service before using substituted service, in violation
of section 415.20, subdivision (b) (section 415.20(b)); (2)
substituted service at the Mailbox Depot was improper because
5
Durden did not receive his personal mail there; (3) the proof of
service purported to leave the documents with a person in charge
of Durden’s office or usual place of business, but he had no such
place at the Mailbox Depot (in other words, that the proof of
service checked paragraph 5.b.(1) instead of 5.b.(3)); and (4) he
was not properly served with the statement of damages as
required by section 425.11. Appellants also asserted the third
and fourth reasons as the bases for improper service on Valiant.
Appellants attached to their motion the notes from
respondents’ process server, stating that one attempt at personal
service was made at Durden’s home at the apartment complex on
June 26, 2011. The notes stated that the server spoke to an
unidentified “John Doe,” who was described as a “black male,”
five feet 10 inches tall, weighing 230 pounds, age 45, with a “bald
head.” According to the notes, Doe stated that Durden “no longer
lives there. [Doe] just moved in.” Doe also told the server that he
knew Durden and that Durden could be found at the Mailbox
Depot address or at the website crowncams.com. Doe gave the
server a business card for “Donovan A. McCloud,” listing the
crowncams.com website, a phone number, email address, and the
Mailbox Depot address.
In his accompanying declaration, Durden stated that he
lived in the unit next door to respondents and had lived there for
over 20 years. He rented a post office box at Mailbox Depot on
behalf of Valiant and confirmed that Valiant received mail there,
but stated that he received his personal mail at his residence. He
stated that he was not home at the time the process server
attempted to personally serve him, and disputed respondents’
claim that he had answered the door pretending to be someone
else by noting that he did not match the description of Doe given
6
by the process server. Durden stated that neither he nor Valiant
conducted business or had an office at the Mailbox Depot address.
According to Durden, he received the notice of entry of
default judgment at the Mailbox Depot address in late December
2021, which was the first time he realized he had been sued. He
also stated that neither he nor Valiant had ever received a copy
of the complaint. Durden’s friend, Mark Brown, also provided a
declaration stating that he answered the door at Durden’s
residence on June 26, 2021. The process server asked if he was
Durden, and Brown “of course, said no and said Mr. Durden was
not home.” Brown denied that the server asked if Durden lived
there and denied telling the server that Durden did not live
there. Brown declared that he “only stated that [Durden] was not
here at this time,” and gave the server a business card for
“‘Donovan McCloud’ which is the name that I understand Mr.
Durden uses for his work with Valiant.” Brown suggested the
server call Durden at the number on the card. Brown stated that
he was five feet 10 inches tall, weighed approximately 220
pounds, and was bald.
Appellants also argued that even if service was proper, they
were entitled to relief from default under section 473.5, which
authorizes a party against whom default or default judgment was
entered to “serve and file a notice of motion to set aside the
default or default judgment and for leave to defend the action”
“[w]hen service of a summons has not resulted in actual notice
. . . in time to defend the action.” (§ 473.5, subd. (a).) Appellants
argued they did not receive actual notice of the lawsuit in time to
defend against it.
They asserted that Durden easily could have been served at
his residence, an address known to respondents, and where they
7
could have also served him as the agent for service of process for
Valiant. They alternatively sought relief under section 473(b)
due to Durden’s mistake, inadvertence, surprise, or excusable
neglect.
Respondents opposed the motion. They contended that
they properly served Valiant at the Mailbox Depot, the address
listed with the Secretary of State as its registered agent for
service of process. As to Durden, they argued that they
attempted to personally serve him at his residence, but the
process server was informed by the person answering the door
that Durden no longer lived there and that he could be reached at
the Mailbox Depot address.3 Respondents accordingly served
Durden by substitute service at that address.
Respondents also argued that appellants had not met the
requirements of section 473.5, as they did not establish that they
lacked actual notice of the complaint. They pointed out that the
evidence demonstrated that Durden received notice of the
summons and complaint by mail to the Mailbox Depot address
twice, once addressed to him and once addressed to Valiant, and
that his failure to respond to the complaint was “inexcusable.”
Respondents attached a printout from the website of the
California Secretary of State, showing that Valiant’s registered
agent for service of process was Durden, at the Mailbox Depot
address. They also attached Valiant’s articles of organization,
again listing Durden and the Mailbox Depot address as the agent
for service of process.
3Respondents also suggested that the claims made by
Brown in his declaration were not credible and that Durden “or
somebody working on his behalf, misdirected the process server.”
8
Appellants filed a reply in support of their motion. They
also objected to several paragraphs in the declaration filed by
respondents’ counsel.
The trial court provided a tentative ruling denying the
motion in advance of the March 10, 2022 hearing. The minute
order indicates that no court reporter was present for the
hearing. After the hearing, the court adopted its tentative ruling
as its final ruling.
In the ruling, the court overruled appellants’ evidentiary
objections. Regarding service on Durden, the court found that
“[t]aking all the declarations at face value, [respondents]
demonstrate effective substitute service on Durden.” The court
noted that two or three attempts at personal service at a “‘proper
place’ ordinarily qualifies as the ‘reasonable diligence’ necessary
to resort to substitute service.” The court found that although
respondents had not attached a declaration of diligence to the
proof of service of summons, “the process server made two
attempts at ‘proper places’ to personally serve Durden,” first at
his residence and second at the Mailbox Depot address as
directed by Brown. In addition, the court found that under the
requisite liberal construction of the service of process statutes,
the Mailbox Depot address qualified as a “usual mailing address
other than a United States Postal Service post office box,” for
Durden personally, as set forth in section 415.20(b). The court
concluded that respondents had effectively served Durden by
substitute service.
The court also found not credible Durden’s assertion that
he first received notice of the lawsuit in late December 2021,
when he received notice of entry of default judgment. The court
reasoned that the complaint and subsequent litigation documents
9
were served by mail to the same address on three prior occasions
between July and December, and that Durden “provides no
explanation why he would have received” the fourth mailing but
not the prior three sent to the same address. As such, the court
concluded that Durden had actual notice of the lawsuit in time to
respond to the complaint and failed to show excusable neglect.
He was therefore not entitled to relief under sections 473.5 and
473(b).
Turning to Valiant, the court found that the entity was
properly served through its designated agent for service of
process at the Mailbox Depot. The court rejected appellants’
argument that service was ineffective because the process server
checked paragraph 5.b.(1) rather than 5.b.(3) on the form. The
court reasoned that service was effective under a liberal
construction of the service of process statutes. “Although the
process server should have checked item 5(b)(3) in the proof of
service of summons, which relates to usual mailing addresses,
the proof of service of summons as a whole demonstrates effective
substitute service” pursuant to section 415.20. The court denied
relief under sections 473.5 and 473(b) for Valiant on the same
basis as for Durden.
Appellants filed a notice of appeal on May 5, 2022. The
notice of appeal stated in one section that appellants were
appealing the order entered on March 10, 2022. Elsewhere, the
notice of appeal indicated that appellants were appealing “the
default judgment entered Dec. 20, 2021, and the Mar. 10, 2022
order denying the motion to set aside the default judgment.”
10
DISCUSSION
I. Timeliness of Appeal
Respondents contend that the appeal is untimely. They
claim that appellants appealed from the default judgment, but
filed their appeal more than 60 days after service of the notice of
entry of judgment on December 20, 2021, in violation of
California Rules of Court, rule 8.104.4 We disagree, because
respondents’ argument assumes the appeal is from the default
judgment, rather than from the March 10, 2022 order.
“‘[T]he timely filing of an appropriate notice of appeal or its
legal equivalent is an absolute prerequisite to the exercise of
appellate jurisdiction.’” (K.J. v. Los Angeles Unified School Dist.
(2020) 8 Cal.5th 875, 881.) Under California Rules of Court, rule
8.104(b), “no court may extend the time to file a notice of appeal.
If a notice of appeal is filed late, the reviewing court must dismiss
the appeal.” As relevant here, a notice of appeal must be filed
within “60 days after the party filing the notice of appeal serves
or is served by a party with a document entitled ‘Notice of Entry’
of judgment or a filed-endorsed copy of the judgment,
accompanied by proof of service.” (Cal. Rules of Court, rule
8.104(a)(1).) Pursuant to California Rules of Court, rule 8.108(c),
“If, within the time prescribed by rule 8.104 to appeal from the
judgment, any party serves and files a valid notice of intention to
move—or a valid motion—to vacate the judgment, the time to
appeal from the judgment is extended for all parties until the
earliest of: (1) 30 days after the superior court or a party serves
an order denying the motion or a notice of entry of that order; (2)
4 Appellants did not file a reply brief and therefore have
not responded to this argument.
11
90 days after the first notice of intention to move—or motion—is
filed; or (3) 180 days after judgment.”
We reject respondents’ contention that the appeal is
untimely. This argument rests upon a mischaracterization of the
appeal as being from the default judgment entered December
2021 rather than the March 2022 order denying the motion to set
aside that judgment. The notice of appeal explicitly stated that
appellants were appealing from the March 10, 2022 order
denying the motion to set aside the default judgment and
identified the appealed order as “[a]n order after judgment.” To
the extent the notice of appeal also identified the default
judgment, “[i]t is axiomatic that notices of appeal will be liberally
construed to implement the strong public policy favoring the
hearing of appeals on the merits.” (Norco Delivery Service, Inc. v.
Owens Corning Fiberglas, Inc. (1998) 64 Cal.App.4th 955, 960.)
The notice of appeal meets this threshold, given its unambiguous
identification of the March 10, 2022 order. Moreover, as
respondents recognize, appellants’ opening brief challenges only
the denial of the motion to set aside the default judgment, rather
than the default judgment itself. We therefore construe the
notice of appeal as appealing from the denial of the motion to set
aside default judgment and deny respondents’ request to dismiss
the appeal as untimely.
II. Order Denying Motion to Set Aside Default Judgment
Appellants argue that the trial court erred in denying their
motion to set aside the judgment. They assert the default
judgment is void because service of the summons and complaint
on each of them was improper as it did not comply with various
statutory requirements. Additionally, they claim that the trial
12
court erred in refusing to grant relief from default pursuant to
either section 473.5 or 473(b). We find no error.
A. Proper Service
1. Legal Standards
“[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 v. Berquist Construction Co. (1994) 24 Cal.App.4th
1426, 1444; see also American Express Centurion Bank v. Zara
(2011) 199 Cal.App.4th 383, 387 (American Express).) “When a
defendant argues that service of summons did not bring him or
her within the trial court’s jurisdiction, the plaintiff has ‘the
burden of proving the facts that did give the court jurisdiction,
that is the facts requisite to an effective service.’” (American
Express, supra, 199 Cal.App.4th at p. 387, quoting Coulston v.
Cooper (1966) 245 Cal.App.2d 866, 868.)
“Where the question on appeal is whether the entry of
default and the default judgment were void for lack of proper
service of process, we review the trial court's determination de
novo.” (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1200; see
Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 858
[“Whether a judgment is void due to improper service is a
question of law that we review de novo.”]; Cruz v. Fagor America,
Inc. (2007) 146 Cal.App.4th 488, 496 [“We review de novo a trial
court's determination that a judgment is void.”].)
2. Service on Valiant
Appellants contend that service on Valiant was invalid
because it did not receive notice of the damages sought as
required pursuant to section 425.11. Appellants point out that
13
although the proof of service by substitute service for Valiant
included a “statement of damages” on the list of documents
served, the subsequent proof of service by mail omitted that
document from the list. Even assuming that the statement of
damages was omitted from the service by mail, we find no error.
Section 425.11 requires service of a statement of damages
upon the defendant in “an action to recover damages for personal
injury or wrongful death.” (§ 425.11, subd. (b).) Respondents
argue that the statute does not apply, as their complaint does not
allege claims for personal injury or wrongful death. Appellants
omitted this limiting language from their discussion of the
statute and have not otherwise shown how section 425.11 is
applicable to this case. The cases appellants cite fall squarely
within the bounds of the statute and are therefore inapplicable to
the claims alleged here. (See Hamm v. Elkin (1987) 196
Cal.App.3d 1343, 1346 [personal injury action]; Stevenson v.
Turner (1979) 94 Cal.App.3d 315, 319-320 [same].)
Moreover, as respondents point out, the complaint alleged
damages of $600,000, while the default judgment awarded them
$356,018.60 against appellants. Thus, even if respondents were
required to provide notice of the nature and amount of damages
sought, they did so through their complaint, and then properly
obtained a judgment in an amount less than the damages
initially alleged. (See Kim v. Westmoore Partners, Inc. (2011) 201
Cal.App.4th 267, 286 [“Statements of damages are used only in
personal injury and wrongful death. . . . In all other cases, when
recovering damages in a default judgment, the plaintiff is limited
to the damages specified in the complaint.”], citations omitted.)
Appellants also contend that Valiant was not properly
served at the Mailbox Depot address because the proof of service
14
incorrectly stated that it was Valiant’s place of business. In
essence, appellants complain that the process server checked the
wrong box on the proof of service. There is no dispute that the
server should have checked the box next to paragraph 5.b.(3),
which applies to service on “a person of at least 18 years of age
apparently in charge at the usual mailing address of the person
to be served, other than a United States Postal Service post office
box.” Instead, the form had a checkmark next to paragraph
5.b.(1), reflecting service on a person “apparently in charge at the
office or usual place of business of the person to be served.”
Appellants do not dispute that the Mailbox Depot was a “usual
mailing address” for Valiant, as it was the designated address for
the entity’s agent for service of process. They also do not dispute
that the manager at the Mailbox Depot with whom the papers
were left qualified under paragraph 5.b.(3) as a person
“apparently in charge.”
Rather, they argue that service was improper because the
wrong box was checked, an error respondents never corrected.
They further contend that the court erred by “overlook[ing] this
serious defect by relying on its ability to liberally construed [sic]
the service of process statutes,” and then “rewriting the
declarations to match what it felt occurred.” They cite no
authority for this assertion of error; the contention is therefore
forfeited. (See County of Butte v. Emergency Medical Services
Authority (2010) 187 Cal.App.4th 1175, 1196, fn. 7 [contention
not supported by citation to legal authority is forfeited as
improperly presented]; In re S.C. (2006) 138 Cal.App.4th 396,
408, citation omitted [“Where a point is merely asserted by
appellant’s counsel without any argument of or authority for the
proposition, it is deemed to be without foundation and requires
15
no discussion by the reviewing court.”]; Sporn v. Home Depot
USA, Inc. (2005) 126 Cal.App.4th 1294, 1303 [“Contentions on
appeal are waived by a party who fails to support them with
reasoned argument and citations to authority.”].)
Even if we considered the argument, we find no error in the
trial court’s decision to construe the proof of service as proper.
Pursuant to section 415.20, subdivision (c), “if the only address
reasonably known for the person to be served is a private mailbox
obtained through a commercial mail receiving agency [CMRA],
service of process may be effected on the first delivery 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,” which requires the owner/operator of a CMRA to “accept
service of process for and on behalf of any of their mail receiving
service customers.” Proof of service made pursuant to section
415.20 “may be made by affidavit of the person making the
service showing the time, place, and manner of service and the
facts showing that the service was made in accordance with the
applicable statutory provisions. The affidavit shall recite or in
other manner show the name of the person to whom the papers
served were delivered and, if appropriate, the title of the person
or the capacity in which the person was served.” (§ 684.220,
subd. (b).)
Despite Valiant’s comment that the trial court acted
improperly to “rewrit[e] the declarations,” it does not dispute that
it could have been properly served at the Mailbox Depot, as the
designated address for service of process. We agree with the trial
court that the proof of service, as a whole, contained sufficient
facts to establish that the process server complied with the
16
applicable statutory requirements. The proof of service included
the time and place of service, and that the documents were left
with the person apparently in charge of the Mailbox Depot, which
Valiant had designated as its address for service of process.
Respondents also mailed a copy of the documents to the same
address, as required to complete service under section 415.20(a).
Thus, the error in checking the wrong box on the proof of service
was harmless. (See Bein v. Brechtel-Jochim Group, Inc. (1992) 6
Cal.App.4th 1387, 1394 [“minor, harmless deficiencies will not be
allowed to defeat service”].)5
3. Service on Durden
Appellants raise the same arguments regarding service on
Durden as they did for Valiant, namely that Durden did not
receive proper notice of damages and that the proof of service
erroneously reflected service on a business rather than to the
usual mailing address. We reject these arguments for the same
reasons detailed above.
In addition, Durden contends that respondents failed to
make best efforts at personal service, as required before utilizing
5 Appellants asserted during oral argument that service on
Valiant was improper for the additional reason that it was
“linked” to the improper service on Durden. This argument was
neither timely raised nor supported by authority and was
therefore forfeited. (See, e.g., Kinney v. Vaccari (1980) 27 Cal.3d
348, 356, fn. 6 [“An appellate court is not required to consider any
point made for the first time at oral argument.”]; County of Butte
v. Emergency Medical Services Authority, supra, 187 Cal.App.4th
at p. 1196, fn. 7.) Similarly, appellants have forfeited their
argument that the award was disproportionate, as they raised it
for the first time at oral argument.
17
substitute service. The trial court found that respondents had
acted with due diligence and we find no error in that conclusion.
Service upon an individual defendant may be made by
personal service, meaning service that is accomplished “by
personal delivery of a copy of the summons and of the complaint
to the person to be served.” (§ 415.10.) Alternatively, an
individual defendant may be served by “substitute service,” 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 . . ., 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
. . . to the person to be served at the place where a copy of the
summons and complaint were left.” (§ 415.20(b).)
However, an individual may be served by substitute service
only after a good faith effort at personal service has been made.
The plaintiff bears the burden to show that the summons and
complaint “cannot with reasonable diligence be personally
delivered” to the individual defendant. (§ 415.20(b); see also
American Express, supra, 199 Cal.App.4th at p. 390, citing Evartt
v. Superior Court (1979) 89 Cal.App.3d 795, 801.) “‘Ordinarily
. . . two or three attempts at personal service at a proper place
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, quoting
Espindola v. Nunez (1988) 199 Cal.App.3d 1389, 1392.)
18
Appellants argue that respondents made a single attempt
at personal service at Durden’s residence, which does not satisfy
the requirement of reasonable diligence. The trial court found
that respondents made two attempts, once at Durden’s residence
and once at the Mailbox Depot address provided by Brown, where
the process server left the documents. The court concluded that
these attempts satisfied the requirement of diligence.
Ellard v. Conway (2001) 94 Cal.App.4th 540 (Ellard), cited
by appellants, is instructive. There, the plaintiffs attempted
personal service at the defendants’ home, but the process server
was told by the gate guard that the defendants had moved. (Id.
at p. 543.) The plaintiffs contacted the United States Postal
Service and obtained a forwarding address for the defendants at
the “Postal Annex,” a private post office box rental facility. (Ibid.)
The process server then attempted to serve the defendants at the
Postal Annex and was informed by the manager that the
defendants received mail there. The process server left the
summons and complaint with the manager and mailed a copy of
the documents to the defendants at the Postal Annex. (Ibid.) On
appeal from the denial of the defendants’ motion to set aside
default judgment, the defendants argued service was improper
because the plaintiffs only attempted to personally serve the
defendants once and thus were not “reasonably diligent” before
resorting to substitute service. (Id. at p. 545.) The appellate
court disagreed, noting that after learning that the defendants
had moved, the plaintiffs were not required to “return to that
address two more times and attempt service at a residence where
the [defendants] no longer lived.” (Ibid.) The court found that
the plaintiffs had exercised reasonable diligence in attempting
personal service at the defendants’ residence, then obtaining a
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forwarding address from the postal service and attempting
service at that address. (Ibid)
Similarly, here, respondents attempted to personally serve
Durden at his last known address at the apartment complex.
The process server stated that he was informed by the person
answering the door that Durden no longer lived there, and was
provided with forwarding contact information on
Durden/McCloud’s business card, which listed the Mailbox Depot
address. By Brown’s account, he told the process server that
Durden was not home, provided the business card, and told the
server to contact Durden using the information on the card.
Respondents proceeded to attempt service on Durden at the
Mailbox Depot address, ultimately leaving the documents with
the person apparently in charge there. We find no error in the
trial court’s conclusion that respondents exercised reasonable
diligence in attempting to serve Durden at “proper” places they
believed he was most likely to be found.6 Respondents were not
required to continue to attempt service at the apartment complex
when they had been provided another address by the occupant of
that apartment (and possibly also told that Durden no longer
lived there). Once their reasonable attempts at personal service
were unsuccessful, respondents were entitled to utilize substitute
service.7
6 We note that Durden’s assertion that it would be easy for
respondents to continue to attempt to serve him at the apartment
complex because they lived in the unit next door ignores the
evidence that respondents moved out of the complex in October
2020.
7 We reject appellants’ argument that the Brown
declaration was entitled to greater weight than the written notes
from the process server. This argument was raised for the first
20
Appellants also contend that even if substitute service was
warranted, the Mailbox Depot address was not Durden’s usual
mailing address for his personal mail, and therefore the service
did not meet the requirements of section 415.20. Respondents
state, and the court found, that they were entitled to treat the
Mailbox Depot address as Durden’s mailing address after they
were directed there by Brown and the business card he provided.
We agree. It was undisputed that Brown gave the process server
Durden’s business card and directed him to contact Durden at the
address listed on it. Respondents also presented evidence that
Brown told the process server that Durden no longer lived in the
apartment complex. In addition, Durden does not dispute that he
leased the Mailbox Depot address and received mail there as
Valiant’s agent. Durden cites no authority that suggests
respondents were required to take additional steps to determine
another usual mailing address. Under these circumstances, we
conclude that the Mailbox Depot address was a “usual mailing
address” for Durden within the meaning of section 415.20. (See
Ellard, supra, 94 Cal.App.4th at p. 546 [“No facts suggest
personal or substitute service was available at any other address
or on any other individual. Thus, section 415.20, subdivision (b)
authorized substitute service on the [defendants] at the private
post office box.”].)
B. Relief under section 473.5
Section 473.5 authorizes the court to set aside a default or
default judgment “[w]hen service of a summons has not resulted
time at oral argument and is therefore forfeited. (See, e.g.,
Kinney v. Vaccari, supra, 27 Cal.3d at p. 356, fn. 6.) Moreover,
we do not reweigh evidence or assess credibility on appeal. (See
Pope v. Babick (2014) 229 Cal.App.4th 1238, 1246.)
21
in actual notice to a party in time to defend the action.” (Id.,
subd. (a).) A defendant moving to set aside a default or default
judgment under section 473.5 must include “an affidavit showing
under oath that the party’s lack of actual notice in time to defend
the action was not caused by his or her avoidance of service or
inexcusable neglect.” (§ 473.5(b).)
Appellants correctly observe that an order denying relief
under section 473.5 is “‘scrutinized more carefully than an order
permitting trial on the merits.’” (H.D. Arnaiz, Ltd. v. County of
San Joaquin (2002) 96 Cal.App.4th 1357, 1368; see also
Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“Because the
law favors disposing of cases on their merits, ‘any doubts . . .’
must be resolved in favor of the party seeking relief from
default.”].) Nevertheless, a motion to vacate a default and set
aside judgment “‘is addressed to the sound discretion of the trial
court, and in the absence of a clear showing of abuse . . . the
exercise of that discretion will not be disturbed on appeal.’
[Citations.] Moreover, all presumptions will be made in favor of
the correctness of the order, and the burden of showing abuse is
on the appellant. [Citation.]” (Lint v. Chisholm (1981) 121
Cal.App.3d 615, 619–620; accord, Shapell Socal Rental
Properties, LLC. v. Chico’s FAS, Inc. (2022) 85 Cal.App.5th 198,
212 (Shapell); In re Marriage of King (2000) 80 Cal.App.4th 92,
118 [“‘‘“The appropriate test for abuse of discretion is whether the
trial court exceeded the bounds of reason. When two or more
inferences can reasonably be deduced from the facts, the
reviewing court has no authority to substitute its decision for
that of the trial court.”’ [Citations.]’”].)
22
Appellants contend that the trial court abused its
discretion in finding that they had actual notice of the complaint.
We disagree.
The trial court did not find Durden credible when he stated
that he received only the notice of entry of default but none of the
earlier documents mailed to the same address (with one copy
each time for Durden and one copy for Valiant). “Credibility is an
issue for the fact finder” (Johnson v. Pratt & Whitney Canada,
Inc. (1994) 28 Cal.App.4th 613, 622), and on appeal “[w]e do not
reweigh evidence or reassess the credibility of witnesses” (Pope
v. Babick, supra, 229 Cal.App.4th at p. 1246).
Moreover, Durden’s assertion that this finding “improperly
put the burden on Durden to show why he did not receive the
prior documents” is not supported by any authority and is
therefore forfeited. (See, e.g., County of Butte v. Emergency
Medical Services Authority, supra, 187 Cal.App.4th at p. 1196, fn.
7.) We also find this contention meritless. It was appellants’
burden to demonstrate a right to relief under section 473.5. (See
§ 473.5(b).) The trial court was not required to accept as true
Durden’s self-serving declaration. Further, appellants failed to
provide any other evidence demonstrating that they lacked actual
notice and that their lack of notice was not caused by their
avoidance of service or inexcusable neglect. By contrast, the trial
court was entitled to credit the evidence provided by respondents
showing that they served the summons and complaint by
substitute service at the Mailbox Depot, and later mailed other
case-related notices to appellants at the same address. As such,
appellants have not shown that the trial court abused its
discretion in finding that they had actual notice of the lawsuit in
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time to defend against it and on that basis denying relief under
section 473.5.
C. Relief under section 473(b)
Section 473(b) authorizes the court to set aside a default
judgment upon a showing that the default resulted from mistake,
inadvertence, surprise, or excusable neglect. (See Shapell, supra,
85 Cal.App.5th at p. 212, citing Manson, Iver & York v. Black
(2009) 176 Cal.App.4th 36, 42.) “The motion for relief must be
made within six months after entry of the default, and the party
moving to set aside the default has the burden of showing good
cause for relief.” (Shapell, supra, 85 Cal.App.5th at p. 212.) We
review an order denying relief under section 473(b) for an abuse
of discretion. (Shapell, supra, 85 Cal.App.5th at p. 212; McClain
v. Kissler (2019) 39 Cal.App.5th 399, 413.)
Appellants have made no showing of a right to relief under
section 473. They vaguely state that if this court finds they had
notice prior to the entry of default, the court should relieve them
of “any mistake they made or neglect attributable to them”
because they moved promptly to set aside the default. But in
their motion below and their brief on appeal, appellants simply
insist that they did not avoid service and that they had no
knowledge of the complaint prior to the entry of default. They
have provided no evidence supporting a claim of mistake or
excusable neglect. As such, the trial court did not abuse its
discretion in finding that appellants did not meet their burden to
establish a right to relief under section 473(b).
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DISPOSITION
The order denying the motion to set aside the default
judgment is affirmed. Respondents are entitled to their costs of
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
CURREY, ACTING, P.J.
ZUKIN, J.

Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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