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Tentative Ruling
Judge Thomas Anderle
Department 3 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION

Hara Laurie Humberd v. Milan Jerosimich

Case No: 17CV04198
Hearing Date: Tue Mar 13, 2018 9:30

Nature of Proceedings: Motion Reconsideration

Motion for reconsideration of order of 1/30.

Ruling: Granted; be prepared to go forward. Be prepared to submit, at the hearing, a proper Judgment based upon the complaint.

Analysis:

The 1/30 order was that the default prove-up could not go forward because there was not a proof of personal service on defendant. Apparently, summons and complaint were served by substitute service on a roommate (the clerk had entered default based on that proof of service), and you (we were not involved in the matter) did not believe the proof of service was adequate. The matter was continued for a CMC on 3/26, for a status report about whether plaintiff had secured personal service. Plaintiff’s motion does not state that she has made any further efforts to serve defendant, and only asks that the Court reconsider the order that the proof of service wasn’t adequate, because she was told by a professional process server that three attempts at the last known residence, followed by service of any adult on the premises, was sufficient, and she had to perform service that way because defendant had been avoiding service.

The Court has reconsidered its previous analysis and now thinks Plaintiff’s request for entry of default and a “prove-up” should be granted. Be prepared to go forward.

Substituted service requires a showing that the summons could not with reasonable diligence be personally delivered to the defendant, and can be accomplished by leaving a copy of summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address, in the presence of a competent member of the household, over the age of 18, who shall be informed of the contents, and thereafter mailing a copy to the defendant at the place where the summons and complaint were left. (CCP § 415.20(b)).

Here, the proof of service is practically illegible as to the dates and times of attempts, but appear to have been three attempts made over two days (the dates appear to be 9/22 and 9/23—a Friday and Saturday—the times are illegible) prior to leaving them with the roommate, followed by mail service.

But there is authority that two or three attempts at personal service at a “proper place” ordinarily qualifies as reasonable diligence. (Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 749.) They can be left with a “competent member of the household,” who need not be a member of the family, and need only have a relationship with the person to be served that makes it more likely than not that they will deliver process to the named party. (Bein v. Brechtel-Jochim Group, Inc. (1992) 6 Cal.App.4th 1387, 1393 [gate guard found to be competent member of the household].)

Here there appears to have been three attempts made over two days (the dates appear to be 9/22 and 9/23—a Friday and Saturday—the times are illegible) prior to leaving them with the roommate, followed by mail service. That will be sufficient for the Court to find the defendant has been “served.”

The Plaintiff has rights that should be protected, as well as the rights of the Defendant. It appears that the Defendant is evading service and it appears that he has been given appropriate notice of this lawsuit.

The underlying complaint is to seek Specific Performance on a contract where by a collateral diamond wedding ring was given and all payments made according to the agreement. The party being sued needs to follow through with the terms of the contract and deliver per contract. An order is being sought to have the diamond returned because payment has been rendered and because Plaintiff has a right to provide it for refinancing.

 
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