Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment and order of the Superior Court of Los Angeles County No. BS104799. Elizabeth Ann White, Judge.
Timothy D. McGonigle and Timothy D. McGonigle for Defendant and Appellant.
Doll, Amir & Eley, Gregory L. Doll and Hunter R. Eley for Plaintiff and Respondent.
ROTHSCHILD, J.
Michael J. Blaschke, P.C. (Blaschke) applied to the superior court for entry of judgment on a sister state judgment from Oklahoma. The superior court entered judgment as requested, and the judgment debtor, RoseTel Systems Corp. (RoseTel) moved to vacate the judgment. The trial court denied the motion. RoseTel appeals from both the judgment and the order denying the motion to vacate. We dismiss the appeal from the judgment as untimely, and we affirm the denial of the motion.
BACKGROUND
On April 12, 2006, Blaschke filed suit against RoseTel in Oklahoma state court to collect unpaid legal fees. Blaschke served RoseTel by mail at RoseTel’s principal place of business in Los Angeles. The record contains several copies of the return receipt for delivery of Blaschke’s summons and petition. The copies in the record are difficult to read, but the receipt appears to have been signed by Sheila Brass; the addressee was “Richard Greenberg[,] Rosetel Corp.” Greenberg is RoseTel’s vice president.
RoseTel did not answer Blaschke’s suit. Blaschke obtained a default judgment against RoseTel in the amount of $45,475.95.
On August 23, 2006, Blaschke filed an application for entry of judgment on the sister-state judgment from Oklahoma. The superior court granted the application and entered judgment against RoseTel on September 28, 2006.
On October 26, 2006, RoseTel moved to vacate the default judgment pursuant to Code of Civil Procedure section 1710.40. RoseTel contended that service of the summons and petition in the Oklahoma action was defective and that RoseTel had meritorious defenses to Blaschke’s claim. Blaschke opposed the motion. In reply, RoseTel introduced a declaration from Greenberg, stating that “Sheila Brass is not authorized to accept or sign for certified mailings. In fact I do not know who Sheila Brass is. She is not employed by RoseTel.”
On December 8, 2006, the superior court denied RoseTel’s motion, finding that service was proper. On February 6, 2007, RoseTel filed a notice of appeal, seeking review of both the September 28, 2006, judgment and the December 8, 2006, order denying RoseTel’s motion to vacate.
DISCUSSION
RoseTel’s appeal from the judgment is untimely. Upon the filing of a timely motion to vacate a judgment, the time to appeal from the judgment is extended until the earliest of (1) 30 days from service of an order (or notice of an order) denying the motion, (2) 90 days from the filing of the first such motion, or (3) 180 days from entry of judgment. (Cal. Rules of Court, rule 8.108(b).) RoseTel filed its motion to vacate the judgment on October 26, 2006, so RoseTel’s time to appeal from the judgment expired 90 days later, on January 24, 2007. RoseTel did not file its notice of appeal, however, until February 6, 2007. We accordingly must dismiss RoseTel’s appeal from the judgment. (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 674.)
RoseTel argues that we should reverse the trial court’s determination that service of the summons and petition in the Oklahoma action was proper, because RoseTel introduced evidence that Brass, who accepted delivery of the summons and petition, was not authorized to do so. We review the trial court’s denial of the motion to vacate the judgment for clear abuse of discretion (Tsakos Shipping & Trading, S.A. v. Juniper Garden Town Homes, Ltd. (1993) 12 Cal.App.4th 74, 88-89), and we find no such abuse here. Brass’ signature on the return receipt for delivery of the summons and petition is dated April 27, 2006. In his declaration dated December 1, 2006, Greenberg stated in the present tense that “Sheila Brass is not authorized to accept or sign for certified mailings. In fact I do not know who Sheila Brass is. She is not employed by RoseTel.” The declaration does not say whether Brass was an employee of RoseTel or authorized to accept certified mail on April 27, 2006. Even Greenberg’s statement that he does not know Brass is unpersuasive, because he does not say that he knows all of RoseTel’s employees or knew all of its employees in April 2006. Thus, assuming for the sake of argument that we should consider Greenberg’s declaration even though it was submitted with RoseTel’s reply papers, we conclude that the declaration does not support RoseTel’s claim of improper service. RoseTel presented no evidence that on the day Brass signed for delivery of the summons and petition, she was not authorized to accept certified mail for RoseTel. Under Oklahoma law, “[a] return receipt signed at [the defendant’s] registered office or principal place of business shall be presumed to have been signed by an employee authorized to receive certified mail.” (12 Okl. St. Ann., § 2004, subd. (C)(2)(c).) RoseTel has not rebutted that presumption.
RoseTel also argues that its motion to vacate should have been granted because Oklahoma law requires that service by mail be sent “by certified mail, return receipt requested and delivery restricted to the addressee” (12 Okl. St. Ann., §2004, subd. (C)(2)(b)), but delivery was not restricted to the addressee here. We disagree. Oklahoma case law holds that violation of the requirement that delivery be restricted to the addressee does not, by itself, constitute grounds to vacate a default judgment if the defendant had actual notice of the lawsuit. (Coulsen v. Owens (Okla. Civ. App. 2005) 125 P.3d 1233, 1237.) RoseTel introduced no evidence that it lacked actual notice.
We note also that it might be impossible to comply with the restricted delivery requirement when the defendant is an entity rather than a natural person. The summons and petition must be sent by certified mail addressed to “the defendant,” (12 Okl. St. Ann., § 2004, subd. (C)(2)(c)), but restricted delivery service is available only if the addressee is a natural person. (39 C.F.R. § 3001, subpt. C, app. A, § 946.23 (2007) [“Restricted delivery service is available only to natural persons specified by name.”].)
The cases RoseTel relies on are distinguishable. In Ferguson Enterprises v. H. Webb Enterprises (Okla. 2000) 13 P.3d 480, 481, the defendant introduced evidence that delivery of the summons and petition was refused by an unauthorized person. Here, there is no evidence that Brass was unauthorized to accept certified mail for RoseTel when she signed for delivery of Blaschke’s summons and petition. In Washington Mut. Bank v. Farhat Enterprises (Okla. Civ. App. 2003) 77 P.3d 1103, 1105-1106, the summons and petition were not sent to the registered office or the principal place of business of the corporate defendant. Here, they were.
Because we affirm the trial court’s rejection of RoseTel’s argument that service was defective, we need not address RoseTel’s argument that it had meritorious defenses to Blaschke’s claim. (Cf. New York Higher Education Assistance Corp. v. Siegel (1979) 91 Cal.App.3d 684, 688-689.)
DISPOSITION
The appeal from the judgment is dismissed. The order denying the motion to vacate the judgment is affirmed. Respondent shall recover its costs of appeal.
We concur: MALLANO, Acting P. J., JACKSON, J.
(Judge of the L. A. S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)