Opinion
B309778
12-28-2021
MARIA BOCARDO, et al., Plaintiffs and Respondents, v. DAVID SHEEN, et al., Defendants and Appellants.
Law Offices of Stephen Glick, M. Anthony Jenkins, for Plaintiffs and Respondents. Cabanday Law Group, Orlando F. Cabanday, for Defendants and Appellants.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BC652373, Yvette M. Palazuelos, Judge.
Law Offices of Stephen Glick, M. Anthony Jenkins, for Plaintiffs and Respondents.
Cabanday Law Group, Orlando F. Cabanday, for Defendants and Appellants.
MOOR, J.
Appellants and defendants David Sheen and Jon Davler, Inc. (appellants) appeal from the trial court's denial of a Motion to Set Aside the Default Judgment entered against them and other co-defendants.
On March 2, 2017, plaintiffs and respondents Maria Bocardo and Maria Olea filed a wage and hour class action lawsuit against appellants David Sheen, Jon Davler, Inc., and other defendants. The original complaint was never served on appellants.
On September 15, 2017, respondents filed the operative First Amended Complaint against appellants and their co-defendants alleging nine causes of action for violations of the Labor Code and the Business and Professions Code relating to payment of wages and provision of meal and rest breaks. On September 20, 2017, plaintiffs submitted an application for leave to serve the First Amended Complaint by publication. In support of the application, plaintiffs submitted the hearsay affidavit of their counsel regarding the claimed efforts to serve the First Amended Complaint, and no other admissible evidence. On November 8, 2017, plaintiffs filed proof of publication. Pursuant to a request from plaintiffs, the clerk entered a default and default judgment against appellants and some of their co-defendants on May 24, 2018.
On August 4, 2020, defendants Jon Davler, Inc., David Sheen, and other defendants filed a "Motion to Set Aside Default Judgement [sic]," which plaintiffs opposed. The court heard the motion on October 20, 2020; after taking the matter under submission, the court denied the motion. Appellants timely appealed the order denying the motion to vacate.
After appellants filed their opening brief on appeal, the parties to the appeal submitted a "Stipulation Resolving Appeal" and then a "Renewed Stipulation Resolving Appeal." By the Renewed Stipulation, the parties to the appeal request that the default judgment entered against appellants by the trial court be set aside as void, and that the action be remanded to the trial court for further proceedings, including permitting appellants to assert all defenses to the First Amended Complaint. The parties agree that the affidavit of plaintiffs' counsel filed in the trial court in support of the request for service by publication failed to establish that plaintiffs exercised due diligence to serve the First Amended Complaint, as the declaration was based on inadmissible hearsay. As such, the parties to this appeal agree that plaintiffs and respondents will not prevail on appeal under the applicable law. (See Olvera v. Olvera (1991) 232 Cal.App.3d, 32, 42 ["It is well established that the affidavit submitted under [Code of Civil Procedure, ] section 415.50 [regarding service by publication] must establish reasonable diligence by 'probative facts' based on personal knowledge"].)
Code of Civil Procedure, section 128, subdivision (a)(8), provides, in relevant part: "An appellate court shall not reverse or vacate a duly entered judgment upon an agreement or stipulation of the parties unless the court finds both of the following: ¶ (A) There is no reasonable possibility that the interests of nonparties or the public will be adversely affected by the reversal. ¶ (B) The reasons of the parties for requesting reversal outweigh the erosion of public trust that may result from the nullification of a judgment and the risk that the availability of stipulated reversal will reduce the incentive for pretrial settlement."
The present appeal presents only an issue regarding plaintiffs' technical compliance with the rules relating to service of process by publication. We find that the parties' reason for seeking a stipulated reversal is well-grounded in legal authority and undisputed facts. As such, those reasons outweigh any erosion of public trust that might result from reversal of the judgment. Further, granting the reversal will not reduce an incentive for pretrial settlement, as the parties correctly anticipate that pursuit of the appeal to conclusion would likely result in reversal in any event. As noted, there is no cognizable evidence in the record that plaintiffs made diligent efforts to serve the First Amended Complaint on appellants before seeking to serve it by publication. We also find that reversal of the default judgment that was the result of defective service by publication will have no impact on non-parties to the appeal, and indeed no such parties have been identified. Nor will reversal adversely affect the interests of the public. (See Union Bank of California v. Braille Inst. of America, Inc. (2001) 92 Cal.App.4th 1324, 1329-1330.)
Pursuant to the parties' stipulation, the judgment is void and must be reversed. The matter is remanded to the trial court for further proceedings, including permitting appellants to assert all defenses to respondents' claims. Also, pursuant to the stipulation, the parties are to bear their own costs on appeal.
We concur: BAKER, Acting P.J., KIM, J.