Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from orders of the Superior Court of Los Angeles County No. BC330938. Michael C. Solner, Judge.
Andrew L. Ellis for Plaintiff and Appellant.
Jones & Ayotte and Normand A. Ayotte for Defendants and Respondents Edmund Anderson and Eddie Rochester Anderson Foundation, Inc.
WOODS, J.
INTRODUCTION
The incident giving rise to the dispute in this appeal occurred on or about April 3, 2004, when plaintiff/appellant, Clifford Wells (“Wells”) was injured while working at a construction site. Wells was allegedly hired by defendants/respondents to do the construction work and was injured when he was attempting to move a refrigerator on the second floor of a residential building located at 3553 South Western Avenue, Los Angeles, California. Wells suffered a broken leg and other serious injuries as a result of the accident, more specifically set forth in his complaint as having occurred when Wells responded to the request of the building manager to assist in moving the refrigerator down a flight of stairs when the building manager dropped his end of the refrigerator causing Wells to fall down the stairs.
The second floor of the building had been leased by the respondents who were operating the leased premises as a sober living center. Wells’ complaint was filed on March 28, 2005, and named two defendants, namely Starting Over Sober, an unknown business entity form, and one Adan Cueva, individually. Thirty fictitious defendants were also included as defendants. Wells’ complaint was pled in terms of general negligence.
Eventually, numerous defendants were included in the lawsuit utilizing the fictitiously pled defendants. Ultimately Wells obtained a sizeable judgment by way of default of certain defendants/respondents, more particularly set forth hereafter in this opinion. The judgment ultimately obtained by Wells was in the amount of $535,485.
The defendants/respondents Edmund Anderson and Eddie “Rochester” Anderson Foundation moved the trial court to vacate the default and default judgment based upon the grounds that service of summons and complaint was never perfected by Wells. In two orders dated April 19, 2007, and April 27, 2007, the trial court granted the prayed for relief from default. The two orders are the subject of Wells’ appeal.
FACTUAL AND PROCEDURAL SYNOPSIS
Wells’ complaint summarized.
Wells filed his complaint in the Los Angeles County Superior Court on March 28, 2005, as a form complaint approved for optional use by the Judicial Council of California. The complaint was captioned “COMPLAINT-Personal Injury, Property Damage, Wrongful Death” but more specifically provided that damages were being sought for personal injury based on a theory of “GENERAL NEGLIGENCE.” The only named defendants were Starting Over Sober, a business entity form unknown, and Adan Cueva. Thirty fictitiously named defendants were sued as Does 1 through 30. Wells alleged that the negligence occurred on April 3, 2004, at 3553 S. Western Avenue, Los Angeles, California and provided a description of reasons for liability as follows: “Defendants, and each of them, on said day and place managed, owned, maintained, operated, controlled, designed and or safeguarded the premises at 3553 S. Western Avenue, Los Angeles, CA 90018 in an unreasonable and unsafe manner so as to proximately cause plaintiff to be injured in the following manner: Plaintiff was hired to do construction work at above premises, when the manager of the above premises asked plaintiff to help him remove a refrigerator. While carrying the refrigerator down a flight of stairs, the manger [sic] dropped his side of the refrigerator causing plaintiff to fall down the stairs and fractured [sic] his leg. Defendants either knew or should have known of the existence of the aforementioned dangerous condition.”
History of Wells’ inclusion of certain fictitious defendants in his lawsuit and theories of liability against each.
Eddie “Rochester” Anderson Foundation.
The Eddie “Rochester” Anderson Foundation (“Foundation”) is a non-profit foundation named in honor of the late actor of the same name who for years starred alongside Jack Benny. The Foundation provides sober-living facilities in the Los Angeles area. The Foundation was made a party defendant in this litigation by Wells as Doe 3. Wells’ theory of liability against the Foundation was based on general negligence as an owner of the premises where the accident occurred. Additionally, Wells maintained that one Jabril Cabrillo (“Cabrillo”) was in the employ of the Foundation as its building manager and through Cabrillo’s negligence, Wells was injured.
Edmund Anderson.
Edmund Anderson (“Edmund”) is the son of Eddie Anderson (“Eddie”). Edmund oversees the Foundation as its director. Wells’ theory of liability against Edmund is likewise couched in terms of general negligence making Edmund personally liable for the actions of Cabrillo as an agent and servant of the Foundation.
Alleged attempts by Wells to perfect service of the summons and complaint on defendants/respondents.
August 9, 2005, service
Wells maintains that he first perfected service of the summons and complaint and other various pertinent documents on the respondents by personal service on Edmund on August 9, 2005. A “PROOF OF SERVICE SUMMONS” was filed by Wells on August 16, 2005, indicating that copies of the summons, complaint, alternate dispute resolution (ADR) package, civil case cover sheet, “cause of action; civil case cover sheet addendum; notice of case assignment; statement of damages; notice to litigants; stipulation; and AM. To CM.” were personally served on August 9, 2005, on “Anderson Edmund [sic]” as agent for service of process of the Foundation at 3937 Arlington Avenue, Los Angeles, CA 90008. The declaration of service was signed by one Johnny Ngo (“Ngo”) under penalty of perjury on behalf of Express Investigative Services on August 11, 2005.
January 6, 2006, service(s)
Wells further maintains a second service was perfected on respondents by substituted service on one Eva Anderson, the mother of Edmund. A “PROOF OF SERVICE SUMMONS” is contained in the record without indicating when the document was filed in the Los Angeles County Superior Court. However, the same documents listed in the declaration of service by Ngo on “Anderson Edmund [sic],” supra, were listed as having been served on Eva Anderson personally on January 6, 2006, at 2500 8th Avenue, Los Angeles, CA 90018. The major differences between the two proofs of service of summons are threefold. With the second proof of service of summons, the party served was “The Eddie Rodchester [sic] Anderson Foundation, Inc. dba Rochester House Foundation.” (Emphasis added.) The second difference is that the person making the service was listed as Mike Karapetyan (“Karapetyan”), but still on behalf of Express Investigative Services. Karapetyan’s verification was signed on January 12, 2006. The third difference is that the documents allegedly served were left at “a home with a competent member of the household (at least 18 years of age) at the dwelling house or usual place of abode of the party[, and informing] her of the general nature of the papers.”
Wells further maintains that a third service was perfected on January 6, 2006. The person served was Eddie Anderson individually, by leaving the documents to be served with Eva Anderson a person purportedly authorized to accept service of process. A “PROOF OF SERVICE OF SUMMONS” is contained in the record on appeal but has no filing date in the Los Angeles County Superior Court. However, the same documents listed in the declaration of Ngo dated August 11, 2008, and in the declaration of Karapetyan dated January 12, 2008, are identical with the attempted service on Eddie Anderson individually on January 6, 2006. Karapetyan verified that he perfected services by leaving the documents with Eva Anderson at 2500 8th Avenue, Los Angeles, CA 90018. Karapetyan swore that the person of Eva Anderson was a competent member of the household at least 18 years of age at the dwelling house or place of abode of the party being served (Eddie Anderson) and the general nature of the documents was explained to Eva Anderson. Karapetyan’s declaration of service was signed and verified under penalty of perjury on January 12, 2006. Karapetyan was again in the service of Express Investigative Services when he allegedly perfected the service.
February 2, 2006, service
This court begins a description of the fourth attempted service by Wells by taking note that both counsel refer to the date of this service in their briefing on appeal as having occurred on February 2, 2006. This date is at odds with the incomplete proof of service filed with this court. As hereafter mentioned, the purported date of service is listed as having occurred on February 3, 2006. The first page of the “PROOF OF SERVICE OF SUMMONS” purportedly served on February 3, 2006, states that the identical documents mentioned in the prior Ngo and Karapetyan declarations were served on Edmund Anderson individually by leaving the documents with “Jane Doe, authorized person to accept service of processfemale [sic]; blonde hair; 5’4” at 3553 Western Avenue, Los Angeles, CA 90018. The proof of service indicates the documents were left with “(business) 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.” Page 2 of this proof of service is missing from the record, but there is no dispute that service was allegedly perfected once again by Karapetyan. The Superior Court file stamp indicates the document was filed on February 10, 2006.
March 9, 2006, service(s)
The fifth, sixth and seventh attempts at service of process by Wells occurred on March 9, 2006. The alleged fifth service is reflected in the “PROOF OF SERVICE OF SUMMONS” filed in the Superior Court on March 17, 2006, indicating that the same documents aforementioned in the Ngo and Karapetyan declarations were served, but additional documents were also served entitled “Amended [sic] to complaint; C.C.C.SH.ADD.; ST. OF DMG; NT. OF LTG; NT OF C” and the party served was Eddie Anderson, individually on March 9, 2006. The verification in the record on appeal is not signed, but the copy indicates that the declaration was signed by Harry Kazakian on March 13, 2006.
The alleged sixth service is reflected in the “PROOF OF SERVICE OF SUMMONS” filed in the Los Angeles County Superior Court on March 17, 2006. The service was allegedly perfected by Harry Kazakian on Edmund Anderson individually by leaving the aforementioned documents with Eddie Anderson, a person authorized to accept service of process at 3553 Western Avenue, Los Angeles, CA 90018. Substituted service was perfected at “(business) 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.” The proof of service also contained a declaration of mailing which stated “I thereafter mailed (by first-class, postage prepaid) copies of the documents to the person to be served at the place where the copies were left (Code Civ. Proc. § 415.20.[)] I mailed the documents on . . . 3/13/06 from . . . Studio City.” A declaration of diligence was attached stating the actions taken first to attempt personal service. The declaration was verified and signed by Harry Kazakian on March 13, 2006.
The purported seventh and last attempted service by Wells reflected in the record on appeal also occurred on March 9, 2006. According to the “PROOF OF SERVICE OF SUMMONS” filed in the Superior Court on March 17, 2006, the same documents aforementioned were served on Eddie Anderson, agent for service of process for “The Eddie Rodchester [sic] Anderson Foundation, Inc.” at 3553 Western Avenue, Los Angeles, CA 90018. The declaration signature line contains no signature, but the name of Harry Kazakian is indicated and is dated March 13, 2006. There is no dispute by the parties that Harry Kazakian signed the declaration on behalf of Express Investigative Services. Again, the declaration indicates that service was at a “business” and with “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.”
Request to enter default filed by Wells on April 19, 2006.
On April 19, 2006, Wells filed a “Request for Entry of Default” in the trial court asking the clerk of the court to enter the default of the following named defendants: “The Eddie Rodchester [sic] Anderson Foundation, Inc.; Edmund Anderson; Eddie Anderson; Jabrill Cabrillo; and The Eddie Rodchester [sic] Anderson Foundation, Inc. dba Rochester House Foundation.” The default was entered as requested on all defendants with the exceptions noted, namely as to The Eddie Rochester Anderson Foundation, Inc. and Cabrillo.
Judgment entered on July 20, 2006.
On July 20, 2006, a judgment was entered by the court in favor of Wells against the following defendants in accordance with Wells’ written declaration under Code of Civil Procedure section 585, subdivision (d): Starting Over Sober; The Eddie Rochester Anderson Foundation, Inc. dba Rochester House Foundation; Eddie Anderson; Edmund Anderson; and Jabril Cabrillo. The total amount of the judgment was $535,485.
Abstract of judgment issued on September 25, 2006.
On September 25, 2006, Wells caused to be issued an abstract of judgment in his capacity as judgment creditor, which was recorded in the office of the County Recorder for Los Angeles County as instrument number 06 2488023. The judgment debtor was listed as Eddie Anderson with a last known address of 3553 Western Ave., Los Angeles, CA 90018. The abstract was mailed to Eddie Anderson on September 26, 2006, at his listed address.
Respondents’ Motion For Relief From Default and Default Judgment filed on February 21, 2007.
On February 21, 2007, respondents, Edmund Anderson and the Eddie “Rochester” Anderson Foundation filed a motion in the Los Angeles County Superior Court pursuant to Code of Civil Procedure section 473.5 contending that respondents had never been served with the complaint and asking the court to exercise its inherent powers to set aside the judgment on the grounds of extrinsic fraud or mistake.
Elaborating more fully on the grounds of their motion, respondents stated that good cause existed to set aside the default and default judgment in that respondents did not receive actual notice of this transaction in time to defend the action before a default and default judgment were taken against them; lack of notice was not caused by any avoidance of service or inexcusable neglect and defendants have a meritorious defense to the action, maintaining parenthetically that neither of the actors involved in, or the circumstances surrounding the plaintiff’s alleged accident were in any way under defendants’ control as more particularly set forth in the lengthy allegations of the motion. Respondents’ motion was accompanied by a memorandum of points and authorities, supporting declarations and a proposed answer to the complaint.
Opposition to the motion for relief from default and default judgment filed by Wells on April 4, 2007.
In his opposition filed with the court on April 4, 2007, Wells raised the issue that the Foundation was a suspended corporation and as such was not entitled to bring the motion; that service was proper; the motion was untimely and Wells would be prejudiced if the motion was granted. Wells requested an evidentiary hearing on the motion.
The alleged major prejudice claimed by Wells was his inability to locate the key eyewitness to Wells’ alleged fall, namely Jabril Cabrillo. Wells maintains that if the default and default judgment were set aside then he would be forced to try his action without the benefit of the key witness.
Among other things, the opposition of Wells contained a declaration from Harry Kazakian stating that he personally served Eddie Anderson and the Foundation by serving a female “Jane Doe,” “about 5’4” with blonde hair,” at 3553 Western Avenue in Los Angeles on March 9, 2006.
The opposition also contained a declaration from Wells’ attorney Andrew Ellis stating that he had determined that as of March 29, 2007, the Foundation was suspended and that he was no longer able to locate a key witness in the case, one Jabril Cabrillo even though Ellis had incurred $500 in investigation expenses in an attempt to locate him.
Ex parte application for order granting Foundation’s insurer, Nonprofits’ Insurance Alliance of California (“NIAC”), leave to intervene.
On April 11, 2007, respondents, acting through the insurer for the Foundation, brought an ex parte application seeking an order of the court permitting NIAC to intervene in the action pursuant to Code of Civil Procedure section 387, subdivision (a) contending that as the insurer for the Foundation it had an interest in the action and in view of the Foundation’s status as a suspended corporation the relief from default would be a nullity if the application was not granted. The court continued the matter to April 19, 2007.
Wells’ opposition to the motion for leave to intervene by NIAC.
On April 17, 2007, Wells filed his opposition to NIAC’s motion for leave to intervene, basically contending that the insurer had no interest in the case, the Foundation was suspended and could not appear in the action and the insurer’s application was untimely.
The Foundation filed a reply to Wells’ opposition on April 18, 2007, citing case law which permitted an insurer to intervene where the insurer remains liable for any default judgment against its insured.
Respondents’ reply to Wells’ opposition to the motion for relief from default.
On April 12, 2007, respondents filed a reply to Wells’ opposition for relief from default accompanied by a memorandum of points and authorities and declarations in support of the motion. One of the declarations submitted with the reply was a declaration of Edmund Anderson attaching a copy of his itinerary and travel confirmation indicating that he was in the State of Florida from August 7 through August 10, 2005.
Hearing on April 19, 2007, on the motion for leave to intervene and on the motion to be relieved from default.
After hearing argument on the motion for leave to intervene on April 19, 2007, the court granted the motion and the Foundation filed its complaint in intervention. The trial court then turned its attention to the motion to be relieved from default. After hearing live testimony from a number of witnesses, the court concluded that as to the August 9, 2005, service Edmund Anderson was in Orlando, Florida on August 9, 2005, and that service on Eva Anderson, Anderson’s mother, was questionable because she suffered from dementia. However, the court concluded that a further hearing was necessary to hear testimony from Gabriela Hernandez, the person on whom service was purportedly made on February 3, 2006. The court then continued the matter for further hearing to April 27, 2007. A summary of the pertinent testimony taken at the hearing on April 19, 2007, is summarized immediately hereafter.
Summary of testimony on April 19, 2007.
In the interest of reducing the extensive testimony to manageable proportions, at times the summary is presented in truncated form or incomplete sentences and closely utilizes the language of the witnesses. In an effort to further simplify the testimony, any reference to the order of the testimony and under what evidentiary device, such as whether adduced under Evidence Code section 776, on direct examination, cross-examination, redirect examination, re-cross-examination, etc., are eliminated.
Edmund Anderson.
Edmund is also known as Eddie Anderson; he runs a sober living facility; a couple of people work there; one person has bleached blond hair about five foot four; depending on the day, four or five people could having been working because it alternates; Edmund’s mother is Eva Anderson; she has dementia and does nothing at all at Sober Living; she has never sat at the front desk at the facility; the facility is a gated facility but does not have a secured gate; he was in Florida on August 9th; he left on August 7th; AirTran was his airline; he believed he landed at an airport in Orlando; he paid for the flight for him and his son by debit card; he does not have a debit card receipt; he never holds on to tickets, but did call AirTran who related that they hold on to their tickets as far back as 2006, but not before that time; he couldn’t say where he was in January 2006; on March 9, 2006, he was in Marina del Rey; a guest was in town from Oakland, California; he did not stop by his office on that day; Sober Living is located at 3553 Western Avenue; (testimony of Edmund interrupted at this point for testimony of next witness).
Harry Kasakian.
Kasakian summarized his expertise as being a private investigator for over 19 years which included adjusting claims for Automobile Club of Southern California as of 2001; has a license as a private investigator; has worked for U.S.A. Express Legal Investigative Legal Services since 2001; was given the assignment to serve Mr. Anderson, The Eddie Rochester Foundation and Cabrillo; has four people serving process at his company; gets involved when his four people are not able to serve the persons involved; several services were attempted through his company in this instance; in March of 2006 he was asked to take on the task of serving Mr. Anderson and the Foundation, which he accepted; on March 9, 2006, he arrived at an address located a 3553 Western Avenue which appeared to be a single family residential building with an entrance on the side with a security door entrance to the dwelling; a number of individuals were loitering there; there were a bunch of vehicles in the parking lot without license plate numbers; one or two steps led to the doorway; an African American female was at the doorway; she was maybe in her thirties, five-four, five-five; I asked if Mr. Anderson was there; she said “yes. Who is asking?”; I said “I’m Harry Kasakian, an investigator and have legal documents, legal process to serve on him; I was told to wait; she went inside and returned with another lady; she had kind of bleached blonde hair, maybe shoulders length, 150 to 160 pounds, maybe a little lighter, between five-three and five-five tall”; I repeated who I was and indicated I have legal process for Mr. Eddie Anderson and asked if he was here; she said “yes” and that she would give it to him; I said well, I should give it to him because I need to do personal service; I was told I could not come in; I was told she would not have Mr. Anderson come out, but she would take the documents to him; she re-entered the dwelling; I heard her say those are for you and she then walked out; I raised my voice a little bit making sure that the documents were received and I said where are the documents—“did you get the documents?”; and basically, the word yes—I heard somebody reply yes; I was told again by the African American lady he was not going to come out; I waited 15, 20 minutes and was told he was not coming out so I left; he indicated that he heard someone purporting to be Edmund Anderson state from within the residence say “yes, it’s a good thing you came today. A day later I’d be in Georgia”; he had never seen Mr. Anderson before.
Edmund Anderson (testimony resumed)
Has a house in Georgia; goes back and forth; flies there on AirTran; does not have a frequent flier account; Gabby Hernandez opens the mail at Sober Living; her instruction on opening the mail depends; if it’s a bill she pays it; she is the office manager; the abstract of judgment is the only time I saw something with my name on it; believes Gabriella has a high school education; she does not have dementia to his knowing.
Neither Edmund nor the Foundation have an ownership interest in the property at 3553 Southwestern Avenue; the property is a commercial building and not a single family dwelling; it’s a mixed use building; restaurant on the north end; Edmund’s office is in the middle; a convenience store is on the south end; 14 or 15 residential units are on the second floor; mother’s home is located at 2500 8th Avenue in Los Angeles; mother’s property has nothing to do with the Foundation; never resided at this address; Foundation address is 3553 South Western Avenue in Los Angles; never attempted to avoid process.
Does not know when his corporation was suspended; for a non-profit corporation you don’t have to pay $100 per year; didn’t file a tax identification exempt form for 2003, 2004 or 2005; presently trying to find out what went wrong.
Abdulla Gebril Cabrillo has no role at the Foundation; Starting Over Sober is an entity which has no connection with the Foundation or him personally; never said it’s a good thing you caught me because tomorrow I’ll be in Georgia.
Summary of testimony on April 27, 2006.
Over the objection of counsel for respondents, additional testimony was permitted from one Gerardo Patino and further testimony was permitted from Harry Kasakian. Respondents’ objection was grounded on counsel’s impression that the purpose of the hearing on April 27, 2006, was to hear and take testimony from Gabriela Hernandez only.
Gerardo Patino.
Is a process server by profession; about seven years; saw the woman in court before, on February 3rd, 2006; saw her at that residential place on Western; looks like a residence with two little businesses on the left and right; gated but open at the back; no front lawn; about two or three stories; no one wanted to accept the papers to be served; a person sitting there took the papers from his hand; told her the papers were a summons and complaint for the actual company; she indicated she was authorized to take the papers; he filled out a proof of service and mailed the papers; woman has a different color of hair but he can identify her as the person served.
Woman’s hair was blonde; did not discuss his testimony with Mr. Kasakian; but Kasakian did tell him to come to court and testify about the service of process that he did; Edmund Anderson was the name of the business he served; estimated that he served about 25 persons or entities per year; about two more on February 3; did not discuss his testimony with attorney Ellis who represents Wells.
Harry Kasakian.
Pertaining to service on the Foundation, gave the documents to a lady he saw today, but she had a different color of hair, a bleached blonde; his notes confirm description of the female served; conversation at time of service was as indicated in his previous testimony.
Gabriela Hernandez.
Works at Rochester House; gets a paycheck; gets paid by the Eddie Rochester Foundation; been working there since 2001; job duties are like administrative assistant; answers the phones; does intakes on clients; opens the mail; intakes on clients involves gathering client information such as name, parole information and other information; Clifford Wells is a client but does not know for how long; name Gebril Cabrillo is familiar and believes he stays at the property to oversee one of the buildings; Emile is owner of the property and lets Cabrillo stay on the property to oversee it; her boss Eddie Anderson told her she had to come to court; the attorney prepared her declaration; confused on whether she talked to the attorney before her declaration was prepared; used to have blonde hair back in 2005; entrance to the property has a metal gate; building is two stories; Rochester Foundation is downstairs; she is the only one opening the mail; talked to the attorney outside before coming in; said I would be answering questions from the other attorney; came to court with her boss; said I would be asked questions about the declaration I signed; did not know whether Mr. Anderson was in town on August 9, 2005; no one else opens the mail and she is never out for the day; she’s there every day; a couple of things went through the office for Starting Over Sober; not concerned because we’re Rochester House; I would send those documents back to sender; Mr. Anderson would not examine them first; has seen exhibit F to opposition to motion at page 2 which indicates it was sent to Starting Over Sober at 3553 South Western Avenue; does not recall the date she saw the document; saw it on a couple of occasions; sent them back to sender at that time; because it stated Starting Over Sober it was sent back regardless of whether Edmund Anderson, Eddie Anderson, Gebril Cabrillo, the Eddie Rochester Foundation, Inc. doing business as Rochester House Foundation were mentioned; would not ask anybody’s permission; she took the authority to send documents back if they did not concern us; was recently reprimanded for getting rid of documents that I should have given to my boss; never saw exhibit G to opposition to motion entitled abstract of judgment; wouldn’t be able to tell whether she saw a document dated August 29th, 2005 addressed to Starting Over Sober at 3553 South Western; wouldn’t go through the whole document unless it was addressed to Rochester House; where it says Eddie Rochester Foundation, Inc. on the back I would discard it if it said Starting Over Sober on it; she discarded the document even if Eddie Anderson’s name was under the name of Starting Over Sober because it didn’t concern us; if it merely said Starting Over Sober I would return it to sender; if mail is addressed Starting Over Sober/Eddie Anderson or Eddie Anderson/Starting Over Sober or Starting Over Sober and Eddie Anderson I would open it because of the name Eddie Anderson; after opening if it pertained to Starting Over Sober I would discard it; if the mail was addressed to Starting Over Sober at this address I would put “moved” or “return to sender on it” without opening it; doesn’t recall what she did with the August 29th document; does not recall what she did with documents dated May 19th, 2006 or June 21st, 2006; I would just scan through anything we would get at the office and discard it if it did not pertain to us; don’t recall seeing the document dated June 21st, 2006; talks to Eva Anderson when she sees her; says “good morning” or “good afternoon” and Eva Anderson says “good morning” or “good afternoon” back; verbal warning from Edmund lasted a couple of minutes.
Findings of the trial court following oral argument on April 27, 2006.
Following oral argument by counsel, the trial court stated its oral findings as follows:
“473.5 motion to set aside default and relief to defend action service of the summons does not result in actual notice to a party in time to defend the action and a default or default judgement has been entered against him or her in the action. He or she may serve and file a notice of motion.
“It goes on to say when we get down to subsection c:
“‘Upon a finding by the court that the motion was made within the period of subdivision a and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect – that’s where you were going – it may set aside the default or default judgement on whatever terms as may be just and allow the party to defend the action.’
“I find that there was excusable neglect on the part of Mrs. Hernandez in opening documents. And as soon as she saw the words ‘Starting Over Sober’ to completely disregard it and not hand it over to Mr. Anderson or someone else in authority there.
“I think the case ought to be tried on the merits. There is an allegation that this particular foundation, really, had no involvement with the acts that led to the plaintiff’s injuries. And I think that needs to be determined. I don’t have – I understand plaintiff’s argument that the key witness may be dead. I don’t have any evidence of that. But in balancing the equities as I think I’m required to do under the facts here, I think the equities requires that the matter be tried on the merits of the case – on the merits as best we can.
“I’m granting the motion to set aside the default and the default judgement, and I would propose to set it for trial at a date convenient to – ”
Wells’ notice of appeal dated May 8, 2007.
On May 8, 2007, Wells completed a notice of appeal which was presumably filed in the Los Angeles County Superior Court on the same date. The notice of appeal does not contain a filing date in the trial court. Wells appeals from “Two Motions for Relief from Default, the first of which was granted on April 19, 2007, the second of which was granted on April 27, 2007.” No issue is raised about the timeliness of the appeal and we infer none. The appeal appears in all respects to be timely, having been filed within 30 days of the order dated April 27, 2007.
DISCUSSION
Standard of review.
The parties are in disagreement as to the standard of review on appeal. Wells opines that the standard of review in this instance is one of de novo review following a trial court’s decision that a judgment is void when improper service is demonstrated, citing Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 496 for the proposition. Respondents, on the other hand take issue with this standard stating that “While this is true in some cases, it doesn’t apply to this case. In Cruz, the trial court’s decision was based on undisputed facts which established that valid service had been made and the defendant ‘presented no evidence that raise[d] a factual issue as to the sufficiency of service of process’-- clearly not the situation in this case.” Respondents maintain that abuse of discretion is the applicable standard citing Rappleyea v. Campbell (1994) 8 Cal.4th 975 and McCreadie v. Arques (1967) 248 Cal.App.2d 39 as follows: “A motion in equity to set aside a default is addressed to the sound discretion of the court. In the absence of a clear showing of abuse of that discretion its determination will not be upset on appeal. . . . A denial of relief by a trial court will be scanned more carefully than will be instances where the trial court has granted the requested relief, to the end that cases be heard on the merits wherever possible.” We hold that the standard of review is accurately stated by respondents and we search the record for an abuse of discretion by the trial judge. As hereafter stated, we find no abuse of discretion and affirm the orders of the trial court.
Order granting NIAC leave to intervene.
After hearing argument on the motion for leave to intervene, the court granted the insurance carrier’s motion and a complaint in intervention was filed. Respondents argue in their opening brief on appeal that Wells neither appealed from or addressed the propriety of the trial court’s order granting NIAC leave to intervene on behalf of the Foundation. Therefore, respondents argue that under well established authority the issue has been waived by Wells as far as appellate review is concerned. This court agrees that Wells has not deeply committed himself to this issue on appeal and it could be an issue which has indeed been waived for purposes of appellate review, but this court declines the invitation of the respondents to declare the issue waived. We address the merits of the issue and find that the trial court was correct in its determination that NIAC should be allowed to intervene on behalf of the Foundation for the reasons hereafter stated.
Foundation first directs this court’s attention to statutory authority which extends to a suspended corporation the right to participate in litigation by way of an exception to the general rule precluding such participation. Foundation cites Revenue and Taxation Code section 19719 as follows “(b) This section shall not apply to any insurer, or to counsel retained by an insurer on behalf of the suspended corporation, who provides a defense for a suspended corporation in a civil action based upon a claim for personal injury, property damage or economic losses against the suspended corporation, and, in conjunction with this defense, prosecutes subrogation, contribution, or indemnity rights against persons or entities in the name of the suspended corporation.” This court discerns that the statute is clear on its face and provides ample authority for the trial court’s order allowing leave to intervene in this instance. However, we look further to decisional law to remove any doubt as to the propriety of the trial court’s intervention order. Foundation directs our attention to El Escorial Owners’ Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, at pages 1349-1350 for the proposition that is was proper to permit a suspended corporation’s insurer to appear in the action on behalf of the corporation in the following language:
“A suspended corporation may not prosecute or defend an action. (Rev. & Tax. Code, § 19719, subd. (a); Reed v. Norman (1957) 48 Cal.2d 338, 343.) But there is an exception for insurers. Revenue and Taxation Code section 19719, subdivision (b), states: ‘This section shall not apply to any insurer, or to counsel retained by an insurer on behalf of the suspended corporation, who provides a defense for a suspended corporation. . . .’ The trial court ruled this section authorized Mid-Cal’s insurer to hire counsel to appear on behalf of Mid-Cal and to defend the action in Mid-Cal’s name.”
Based on the statutory and decisional authority above mentioned we find that the trial court was not in error by allowing NIAC leave to intervene.
Order setting aside default and default judgment.
The focal point of Wells’ attack on the ruling of the trial court is that the statutory authority for the ruling is miscast in this instance. Wells maintains that in order for Code of Civil Procedure section 473.5 to be relevant, there must be demonstrative evidence upon which the trial court could find that the summons did not result in actual notice to the defaulting party. Wells opines that by the many attempts at service as indicated in the record, service was perfected thereby removing the case from Code of Civil Procedure section 473.5. We find that Wells’ argument lacks merit in view of the fact that the trial court ultimately determined from evidence at the time of the hearings that respondents were not served. After extensive testimonial and documentary presentations by counsel the court decided the issue against Wells. If there is evidence in the record which is substantial, then this court must give deference to the decision of the trial court even though any one member of the panel might have decided the issue otherwise if sitting in the position of the trial judge. So our first task on appeal is to determine whether substantial evidence is demonstrated in the record on appeal. (Auburn Woods I Homeowners Assn. v. Fair Employment (2004) 121 Cal.App.4th 1578, 1583 [“Substantial evidence is defined as ‘“relevant evidence that a reasonable mind might accept as adequate to support a conclusion, . . .”’ [Citation] or evidence of ‘“‘ponderable legal significance . . . reasonable in nature, credible, and of solid value.’”’ [Citation.]”.) We find that there is such evidence for the reasons hereafter given.
We discern that the issue comes down to a matter of credibility. It is true that evidence was presented that the service attempted by Wells was extensive as demonstrated by seven different attempts to obtain and perfect service. The record is replete with testimony of the process servers stating their attempts to obtain service in this instance as previously and laboriously detailed in the summary of the testimony of each, supra.
However, the heart of the trial court’s ruling is its belief that Gabriella Hernandez, actually and with sufficient excuse, merely failed to deliver the documents purportedly attempted to be served on Edmund Anderson and either discarded the documents or returned them to the sender when there was an indication that Starting Over Sober was involved. In other words the trial court believed that the documents never came into the hands of Edmund Anderson. In addition, the trial court believed that Edmund Anderson was actually in the State of Florida on the date service was purportedly made on him. This determination by the trial court is supported by evidence in the record on appeal and in deference to the trial court’s determination we affirm the order, but we first must consider Wells’ contention that the motion to be relieved of default under Code of Civil Procedure section 473.5 was not timely.
Wells correctly contends that under Code of Civil Procedure section 473.5 the motion must be filed within the earlier of two years after entry of a default judgment or 180 days after service of “a written notice that the default or default judgment has been entered.” Wells asserts that Edmund Anderson was served with the notice of request for entry of default on April 19, 2006, and respondents did not bring their motion to be relieved from default until February of 2007 which is a period of time well over 180 days. However, we hold that, as asserted by respondents, the event used to “trigger” the 180 day period is not correctly stated by Wells and we so hold for the following reasons.
As respondents urge, the date the abstract of judgment was sent to Edmund Anderson is the critical date, which “triggered” the 180-day period of limitation. The abstract was sent to Anderson on September 26, 2006. NIAC filed an ex parte application for designated relief on April 11, 2007, which is within the 180-day provision set forth in Code of Civil Procedure section 473.5. The motion, therefore, was timely filed.
Redirecting our attention to the merits of respondents’ motion, we hold that the trial court acted well within its discretion in setting aside the default and default judgment and substantial evidence in the record underpins the appropriate exercise of judicial discretion in this instance. The orders of the court are in keeping with the admonition of our Supreme Court in Rappleyea v. Campbell, supra, 8 Cal.4th 975 expressing a preference for trial on the merits whenever possible, given the circumstances of a particular case. We hold that this case presents such circumstances.
DISPOSITION
The orders are affirmed. Respondents are awarded costs of appeal.
We concur: PERLUSS, P.J., JACKSON, J.