Opinion
C042720.
10-15-2003
MICHAEL DEAN, Plaintiff and Appellant, v. TIMOTHY GEORGE et al., Defendants and Respondents.
Michael Dean (plaintiff) appeals from an order setting aside the defaults and default judgments he obtained against Timothy George (George) and Option One Mortgage Corporation (Option One) (collectively referred to as defendants). For the reasons stated below, we shall affirm the order.
FACTUAL BACKGROUND
On June 27, 2002, plaintiff filed a breach of contract complaint seeking $2 million in damages against defendants for their wrongful foreclosure on plaintiffs residence. According to a proof of service filed by M. Rodriguez of "Aggressive Process Serving," the summons and complaint were personally served on George at his home, which was specified to be at 818 West 7th Street, 2nd floor, in Los Angeles, on July 9, 2002, at 2:05 p.m. At the same time on the same date and at the same location, Hector Flores of "A Aggressive Process & Paralegal" served a copy of the summons and complaint on Maria Sanchez, whom Flores designated as a person authorized to accept service on behalf of Option One.
Plaintiff caused defendants defaults to be entered on August 15, 2002, and the next day a default judgment in the amount of $2 million was entered in favor of plaintiff against defendants.
One week later, on August 23, 2002, defendants moved to set aside the defaults and vacate the default judgments entered against them. The motion was supported by a declaration from Brian P. Stewart, the in-house litigation counsel and attorney of record for defendants. Stewart declared he contacted plaintiff on August 2, 2002, to discuss the case. Plaintiff informed Stewart he had filed for bankruptcy on July 24, he was not sure he was going to pursue the action against defendants, he wanted to discuss reinstating his loan, and he would get back to Stewart the following week.
Over the next two weeks, Stewart tried unsuccessfully to reach plaintiff. Stewart finally succeeded in contacting plaintiff on August 16, 2002. Stewart informed plaintiff that defendants answers were due and he requested an extension of time to answer. Plaintiff reiterated that he was not sure he would pursue his action against defendants and that he would get back to Stewart the following Monday. Plaintiff did not inform Stewart he had taken defendants defaults a day earlier, and had obtained default judgments the very day he spoke with Stewart.
Stewart telephoned plaintiff on August 22, 2002, to discuss setting aside the defaults, but plaintiff hung up on him.
Georges declaration in support of defendants ex parte application for order quashing writ of execution was also filed in support of the motion to set aside the defaults and vacate the default judgments. George stated that the proof of service of the summons and complaint as to him was false, since he had never even been to 818 West 7th Street in Los Angeles, let alone resided there.
Defendants argued that the defaults and default judgments should be set aside based on plaintiffs misrepresentations to Stewart that he was unsure he would pursue the lawsuit when in fact he was seeking defendants defaults. Defendants argued that Stewarts sworn declaration attesting to his mistake, inadvertence, surprise or neglect mandated relief under Code of Civil Procedure section 473, subdivision (b).[] George also argued that the default as to him was "facially void and invalid" as he was never properly served.
Plaintiff opposed the motion on the ground that he had not acted fraudulently and had attempted to effect proper service.
The superior court granted the motion to vacate and set aside the defaults and default judgments on the grounds that George was never properly served and there was excusable neglect on the part of Option One. Plaintiff appeals from that order. (Colby v. Pierce (1936) 15 Cal.App.2d 723, 725 [order granting motion to vacate judgment under § 473 appealable].)
DISCUSSION
A. George
Section 585, subdivision (a), permits entry of default in an action based upon contract "if the defendant has . . . been served . . . ." "A party cannot be properly joined unless served with the summons and complaint; notice does not substitute for proper service. Until statutory requirements are satisfied, the court lacks jurisdiction over a defendant. [Citations.]" (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808-809.) In the present case, George filed a declaration attesting to lack of personal service of the summons and complaint. Plaintiff failed to controvert this declaration. The court found George had not been properly served. This determination, being supported by substantial evidence, is conclusive on the issue of service. (Shamblin v. Brattain (1998) 44 Cal.3d 474, 478-479 (Shamblin).) In the absence of proper service, the court properly set aside the entry of default and default judgment against George. (§ 585, subd. (a).) As plaintiff raises no credible argument to the contrary, we shall affirm the order with respect to George.
B. Option One
The superior court set aside the entry of default and default judgment against Option One on the ground of excusable neglect. The decision was supported by the declaration of fault filed by Option Ones attorney, Stewart. In J.A.T. Entertainment, Inc. v. Reed (1998) 62 Cal.App.4th 1485, 1491-1492 (J.A.T. Entertainment), we explained how relief is mandatory in such circumstances:
"Section 473, subdivision (b), permits a party or the partys legal representative to be relieved from the consequences of a dismissal entered as a result of mistake, inadvertence, surprise, or neglect. Two aspects of subdivision (b) achieve this end. First, it provides for discretionary relief, in that it states the `court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. A party seeking such relief must show `mistake, inadvertence, surprise, or excusable neglect, and it is within the trial courts discretion to grant relief under this provision. [Citation.]
"Subdivision (b) of section 473 also includes an `attorney affidavit provision. It states in pertinent part: `Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is [timely], is in proper form, and is accompanied by an attorneys sworn affidavit attesting to his or her mistake, inadvertence, surprise or neglect, vacate any . . . (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorneys mistake, inadvertence, surprise, or neglect. . . .
"Under this provision, then, a party is relieved from the consequences of his or her attorneys mistake, inadvertence, surprise, or neglect, and relief is available regardless of whether the attorneys neglect is excusable. [Citations.] If the requirements of this provision are met, then relief is mandatory . . . . [Citations.]" (J.A.T. Entertainment, supra, 62 Cal.App.4th 1485, 1491-1492; accord, State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 608.)
Stewarts declaration admitting his fault with respect to failing to file a timely answer justified relief under section 473. Even in the absence of a declaration of fault, relief would have been appropriate under the discretionary relief provisions of section 473. While it is true that plaintiff had no legal obligation to warn Stewart during their discussion of the action on August 2, 2002, that he would be seeking entry of Option Ones default in the near future, plaintiffs silence (if not outright misrepresentations) regarding his intentions was a factor the superior court could consider in ruling on Option Ones motion. (See Bellm v. Bellia (1984) 150 Cal.App.3d 1036, 1038.) In addition, Option One moved promptly to obtain relief once it learned of its default. In the absence of a clear showing of abuse of discretion (a showing which plaintiff does not undertake), the order granting Option One relief will not be disturbed. (Shamblin, supra, 44 Cal.3d at p. 478.)
DISPOSITION
The order setting aside and vacating the entry of defaults and the default judgments against defendants is affirmed. Defendants shall recover their costs on appeal.
We concur: SCOTLAND, P.J., MORRISON, J. --------------- Notes: Further undesignated section references are to the Code of Civil Procedure.