Helm v. Petz

















Filed 5/13/13 Helm v. Petz CA3











NOT TO BE PUBLISHED





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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(San
Joaquin)

----






>

JOSEPH HELM, Plaintiff and Appellant, v. MICHAEL PETZ, Defendant and Respondent.

C070426 (Super. Ct. No. 39201100259419CUPOSTK)

name="_BA_ScanRange">Plaintiff Joseph Helm obtained a $3.6 million default
judgment against defendant Michael Petz.
ADDIN BA xc <@rec> xl 33 s BROCJZ000008
xpl 1 l "[Appellant’s Appendix (“AA”) 5-8]" The trial court subsequently granted Petz’s
motion to set aside his default and the href="http://www.fearnotlaw.com/">default
judgment, after Petz argued he was not properly
served with the summons, complaint, or statement of damages.

Helm appeals from the trial court’s
order setting aside Petz’s default and the default judgment entered against
him. We find no error, and shall affirm
the trial court’s order.

BACKGROUND

This action arises out of a car
accident. Helm, then 17 years old, lost
control of his car while attempting to avoid another vehicle and skidded off
the road onto property leased by Petz at 2630 W. Durham Ferry Road in Tracy.

Helm settled with the driver of the
other car and sued Petz for personal injuries sustained in the accident. Helm alleged that Petz (or someone at his
direction) applied a chemical to control dust on the road that caused it to be
“ ‘slick as ice’ ” and caused Helm’s injuries.

Apparently believing that Petz lived
at 2630
W. Durham Ferry Road, Helm hired a process server who filed a declaration of
diligence that he twice attempted to serve Petz at that address, stating,
“House is in a rural area. No response
at door. No cars.” In his third attempt at serving Petz at that
address, the process server “[d]iscovered a warehouse in back. Paragon Company. Per employee, Mike not in.” On the fourth day, the process server averred
he accomplished substituted service on Petz by leaving a copy of the summons,
complaint, and statement of damages with “Jerry Dias, Employee,” a “competent
member” of Petz’s household.

When Petz did not respond to the
complaint, Helm filed a request for entry of Petz’s default, which was mailed
to Petz at the 2630
W. Durham Ferry Road address.href="#_ftn1" name="_ftnref1" title="">[1]

The trial court entered a default
judgment against Petz in the amount of $3.6 million, plus costs. According to the proof of service, notice of
entry of judgment was mailed to Petz at 2360
W. Durham Ferry Road, and to Petz’s insurance defense counsel in Rancho Cordova.

Petz then brought the instant motion
to set aside the default and default judgment, on the ground that Helm
“completely failed to effect proper service” of the summons, complaint, or
statement of damages and “[a] defendant who is not properly served is entitled
to relief from default and default judgment.
[CCP ADDIN BA xc <@osdv> xl 9 s
BROCJZ000009 xpl 1 l "§ 473 (d)" § 473(d)].” Petz also asserted he was never served with a
copy of Helm’s request for entry of default, and the default judgment is
excessive. ( ADDIN BA xc <@st> xl 30 s
BROCJZ000001 xpl 1 l "Code Civ. Proc., §§ 473, 473.5" Code Civ. Proc., §§ 473, 473.5.)href="#_ftn2" name="_ftnref2" title="">[2] Petz
averred in support of his motion he was never personally served with the
summons and complaint, and copies were never mailed to his home.href="#_ftn3" name="_ftnref3" title="">[3] He
purchased the leased family farm at 2630 W. Durham Ferry Road around the time the complaint was filed but
had resided elsewhere (on S. Bevis Road in Tracy) for the past 21 years. Jerry Dias, the person allegedly served, was
not an employee of Petz and was not authorized to accept service for Petz;
rather, Dias was a sole proprietor who did business as Paragon Company, with
which Petz had never been associated.

Dias also submitted a declaration
stating he was neither an employee of Petz nor a “ ‘person in charge’ ” of
Petz’s business; he told the process server Petz did not reside at that
property and if the documents were important, they should be delivered to Petz
at his residence nearby.

Petz’s insurance defense counsel
also submitted a declaration in which she described attempts to persuade Helm’s
counsel that service was defective and he should set aside the default taken
against Petz. At the prove-up hearing,
counsel informed the court Petz was not properly served.

Helm opposed the motion. In serving Petz at 2630 W. Durham Ferry Road,
Helm relied on Petz’s testimony in related proceedings against the other driver
that he owns the subject property and conducts a farming business there, and
that he drives “through that intersection twenty, thirty times a day” to “check
on workers.” Legal mail sent to Petz at 2630 W. Durham Ferry Road was not always returned as
undeliverable. The insurance company
acknowledged Helm as the claimant and was aware that Helm had made a request
for entry of default; its counsel “appeared” at the prove-up hearing on Helm’s
request for default judgment. Any
“ostensible defects” in service were waived, and the service requirements were
“substantial[ly] compli[ed]” with. Helm’s
father and uncle each submitted a declaration, averring that he met Petz on the
2630
W. Durham Ferry Road property and that Petz told them “this was his property and
business location, where he maintained a shop and office.”

In reply, Petz averred he never
represented to Helm’s father and uncle that his farm repair shop is or was his
office or an address where he receives mail.
The house on the 2630 W. Durham Ferry Road property is rented, and only the tenant
uses that mailbox; Petz maintains his home and business office on S. Bevis Road.
Petz argued, again, that the default and default judgment should be
vacated because Helm “completely failed to effect proper service,” citing both ADDIN
BA xc <@osdv> xl 40 s BROCJZ000011 l "sections 473, subdivision
(d), and 473.5" sections 473, subdivision (d) and 473.5.

At the hearing on Petz’s motion to
set aside the default and default judgment, Helm’s counsel challenged Petz’s
“credibility” as to whether he “operates his farming business out of 2630 West
[Durham] Ferry Road.”
The trial court ultimately concluded that its tentative ruling setting
aside the default judgment under ADDIN
BA xc <@osdv> xl 28 s BROCJZ000012 l "section 473, subdivision
(d)" section 473, subdivision (d) would
“stay.”

DISCUSSION

A trial court may, upon motion by
either party after notice to the other party, “set aside any void judgment or
order.” ( ADDIN BA xc <@osdv> xl 16 s
BROCJZ000013 xpl 1 l "§ 473, subd. (d)" § 473, subd. (d).) Its decision to grant or deny relief will not
be disturbed on appeal absent clear abuse.
(
ADDIN BA xc <@cs> xl 69 s BROCJZ000002 xhfl Rep xpl 1 l ">Zamora v. Clayborn Contracting Group,
Inc.(2002) 28 Cal.4th 249" Zamora
v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257 (>Zamora).) The policy of the law favors a hearing on the
merits. ( ADDIN BA xc <@cs> xl 46 s
BROCJZ000003 xhfl Rep xpl 1 l "Shamblin
v. Brattain(1988) 44 Cal.3d 474" Shamblin
v. Brattain (1988) 44 Cal.3d 474, 478.)

A default judgment entered against a
defendant who was not served with a summons in the manner prescribed by statute
is void. Under ADDIN
BA xc <@$osdv> xl 28 s BROCJZ000012 section 473, subdivision (d), the court may
set aside a default judgment that is valid on its face but void, as a
matter of law, due to improper service.
(
ADDIN BA xc <@cs> xl 51 s BROCJZ000004 xhfl Rep xpl 1 l ">Hearn v. Howard(2009) 177
Cal. App. 4th 1193" Hearn
v. Howard (2009) 177 Cal.App.4th 1193, 1200 (Hearn); accord, ADDIN
BA xc <@cs> xl 54 s BROCJZ000005 xhfl Rep xpl 1 l ">Sakaguchi v. Sakaguchi(2009)
173 Cal.App.4th 852" Sakaguchi
v. Sakaguchi (2009) 173 Cal.App.4th 852, 858.) 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. ( ADDIN BA xc <@cs> xl 63 s
BROCJZ000006 xhfl Rep xpl 1 l "Cruz
v. Fagor America, Inc.(2007) 146 Cal.App.4th 488" Cruz
v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495-496 (>Cruz).)

Here, the parties do not dispute
that Petz was not personally served. ( ADDIN BA xc <@osdv> xl 8 s
BROCJZ000014 xpl 1 l "§ 415.10" § 415.10.) Nor was he served by “leaving a copy of the
summons and complaint at the person’s dwelling house, usual place of
abode . . . .” ( ADDIN BA xc <@osdv> xl 19 s
BROCJZ000015 xpl 1 l "§ 415.20, subd. (b)" § 415.20, subd. (b).) And the trial court apparently concluded that
Petz was not, in lieu of personal service, served “by leaving a copy of the
summons and complaint during usual office hours in his . . . office” or at his
“usual mailing address” ( ADDIN BA xc <@osdv> xl 19 s
BROCJZ000016 xpl 1 l "§ 415.20, subd. (a)" § 415.20, subd. (a)), or served “by
leaving a copy of the summons and complaint at [his] . . . usual
place of business, or usual mailing address . . . in the presence of
a competent member of the household or a person apparently in charge of his or
her office, [or] place of business . . .” ( ADDIN BA xc <@$osdv> xl 19 s
BROCJZ000015 xpl 1 § 415.20, subd. (b)). In so doing, the trial court credited Petz’s
declaration that the address to which the summons and complaint were delivered
was neither his residence nor his business office. We will not disturb the trial court’s
determination of controverted facts. ( ADDIN BA xc <@$cs> xl 71 s
BROCJZ000002 xhfl Rep xpl 1 Zamora, >supra, 28 Cal.4th at pp. 257-258.)

We agree with the trial court that
these facts compel the conclusion that Petz was not properly served with the
summons and complaint; accordingly, the entry of default and the default
judgment were void for lack of proper service of process. ( ADDIN BA xc <@$cs> xl 50 s
BROCJZ000004 xhfl Rep xpl 1 Hearn, >supra, 177 Cal.App.4th at p. 1200; ADDIN
BA xc <@cs> xl 66 s BROCJZ000007 xhfl Rep xpl 1 l ">Cruz v. Fagor America, Inc.,>supra, 146 Cal.App.4th" Cruz,
supra, 146 Cal.App.4th at pp.
495-496.)

Helm argues on appeal the trial
court had no jurisdiction to set aside the judgment under ADDIN
BA xc <@osdv> xl 11 s BROCJZ000017 l "section 473" section 473 because “the notice of motion
and motion did not argue ADDIN
BA xc <@$osdv> xl 11 s BROCJZ000017 section 473 as a basis for relief.” True, Petz chiefly relied in his moving
papers upon ADDIN BA xc <@osdv> xl 13 s
BROCJZ000018 l "section 473.5" section 473.5 as a basis for relief,
inasmuch as he argued that service was so procedurally inadequate as to fail to
afford him of actual notice of the proceeding in time to defend himself against
the default or default judgment.
However, his moving papers argued at length the “default and default judgment
should be vacated/set aside because [Helm] completely failed to effect proper
service on Mr. Petz” and, specifically, argued that “[a] defendant who is not
properly served is entitled to relief from default and default judgment. [CCP ADDIN
BA xc <@$osdv> xl 9 s BROCJZ000009 xpl 1 § 473(d)].” His reply papers also identify ADDIN
BA xc <@$osdv> xl 28 s BROCJZ000012 section 473, subdivision (d) as a basis for
relief. Petz did not “abandon[] any
right to relief under ADDIN
BA xc <@$osdv> xl 11 s BROCJZ000017 section 473.” There was no error.

DISPOSITION

The order is affirmed.







RAYE ,
P. J.







We concur:







BLEASE , J.







NICHOLSON , J.