Case Number: BC585752??? Hearing Date: September 06, 2016??? Dept: 31
REQUEST FOR ENTRY OF DEFAULT JUDGMENT AGAINST DEFENDANTS Michael Reinboth, Patrick Gallagher, Michael Johnson, Billie Grief, and Desiree Winder is DENIED.
On May 18, 2016, this Court issued an order noting two deficiencies regarding Plaintiffs? default prove-up package. At the hearing on the matter, the court had a lengthy colloquy with plaintiff’s counsel about these very issues.
In the court’s May 18, 2016, ruling, the Court noted that Plaintiff had not provided sufficient evidence to support proper service upon Defendants Billie Grief and Michael Johnson via certified mail, return receipt requested pursuant to CCP ? 415.40. See CCP ? 417.20(a); Taylor-Rush v. Multitech Corp. (1990) 217 Cal.App.3d 103, 110-11 (?While a return receipt signed by someone authorized by a nonresident defendant to sign for his mail is sufficient, the plaintiff must provide separate evidence establishing the authority of the person who signed the return receipt on defendant’s behalf.?); Neadeau v. Foster (1982) 129 Cal.App.3d 234, 237 (noting return receipt signed by non-defendant combined with affidavit that signing party was ?employed by defendant as his office manager and ?was authorized to sign for and accept mail addressed to defendant? was sufficient.)
In response to the Court?s ruling on this issue, Plaintiff provides a printout from the Nevada Secretary of State?s website for a company called ?Incorporated Productions.? (Miller Decl. ? 2.) The registered agent for service of process for Incorporated Productions is listed as ?Registered Agents, Inc.? with an address of 401 Ryland St STE 200-A, Reno, Nevada, which is the address that Plaintiff mailed the certified mail, return receipt requested pursuant to CCP ? 415.40. The print-out also indicates that Defendants Billie Grief and Michael Johnson are Directors of Incorporated Productions. Ignoring for a moment that the print-out is inadmissible hearsay, the print-out provides business addresses for both Defendants Billie Grief and Michael Johnson, 5348 Vegas Dr., Las Vegas, Nevada 89108. (Miller Decl. Ex. 1.) Plaintiff did not use this address. Additionally, no information is provided regarding the identity of the actual signatory, ?Sylvia,? and her authority to accept service on behalf of either Registered Agents, Inc., Incorporated Productions, or Defendants Grief or Johnson.
?Agents are not fungible. A person who is authorized to perform one function on behalf of a principal may have no authority at all regarding a different function.? Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1438. Additionally, the Court rejects Plaintiffs? tenuous inference that registered mail addressed to an individual, care of a corporation, mailed to the corporation?s registered agent for service of process is sufficient to evidence actual delivery upon the individual. Id. at 1438-39 (?the mere fact that some employee of the corporation received the summons does not necessarily establish substantial compliance. Rather, there must be evidence ?establishing actual delivery to the person to be served…? (? 417.20, subd. (a).).?) The Court finds that service remains improper as to Defendants Grief and Johnson.
The Court?s order also required Plaintiff to provide a declaration of mailing, section 6 of form CIV-100, as required by CCP ? 587. The Court noted that Plaintiff?s CIV-100 section 6 failed to indicate which, if any, of the Defendants? addresses are unknown. Plaintiff?s statement that ?no parties have appeared in and all defendants are in default? does not relieve Plaintiff of its duty to comply with CCP ? 587. Plaintiff was able to personally serve several of the Defendants in this action, suggesting knowledge of a last known address.
Rather than submit a declaration of mailing, Plaintiff argues in its supplemental memorandum that ?CCP ? 587 requires proof of service of the Request for ENTRY of default, only.?
Plaintiff is mistaken. As an initial matter, Plaintiff ignores the title of CCP ? 587: ?Affidavit of mailing application for entry of default judgment.? (emphasis added.) Additionally, Plaintiff?s contention is belied by the relevant case authority on the issue. See e.g. Rodriguez v. Henard (2009) 174 Cal.App.4th 529, 535 (?Section 587 states that the plaintiff’s application (or request) for entry of default and/or for default judgment must include an affidavit stating that a copy of the application has been mailed to the defendant’s attorney of record, or if none, to the defendant at his or her last known address.?) (emphasis added). ?In a related contention, appellant argues that it was not obliged to comply with Code of Civil Procedure section 587 in seeking a default judgment, noting that a defendant ordinarily is not entitled to notice of proceedings after entry of default (Code Civ. Proc, ? 1010). We observe that appellate courts and treatises have interpreted the phrase ?application … for entry of default? in Code of Civil Procedure section 587 to include applications for entry of a default judgment.? Bae v. T.D. Service Company (2016) 245 Cal.App.4th 89, 108 n.15 (emphasis added). It is clear Plaintiff must file a declaration of mailing.
The request for entry of default judgment is once again DENIED. Given that plaintiff’s counsel has failed to address the issues raised by the court once again, the court is inclined to dismiss the action.