FYBEL, J.
Defendant James Paul Smurro appeals from the denial of his motion to set aside the default and default judgment (the motion) entered against him and in favor of plaintiff Palacio Del Mar Homeowners Association. Defendant argues the trial court erred by refusing to set aside the default and default judgment because (1) a defect on the face of the proof of service of summons rendered the service of process invalid and the default judgment void, (2) defendant did not have actual notice of the lawsuit, (3) relief should have been granted under Code of Civil Procedure section 473, subdivision (b), and (4) the certificate regarding alternative dispute resolution filed by plaintiff contained "perjurious" statements. (All further statutory references are to the Code of Civil Procedure unless otherwise specified.)
We affirm. Substantial evidence showed defendant was properly served with service of process and he had actual knowledge of the lawsuit. The record does not support relief under section 473, subdivision (b) or based on defendant's challenges to the certificate of alternative dispute resolution. We find no error.
In March 2009, plaintiff filed a lawsuit against defendant for breach of covenant, injunctive relief, and declaratory relief. Plaintiff's complaint alleged defendant owns property (the property) in the common interest development known as Palacio Del Mar in San Clemente (the project). Plaintiff is the project's residential owners association.
The complaint further alleged defendant's neighbors complained to plaintiff that trees and vegetation on the property materially impaired their views. Following plaintiff's architectural committee's inspection of the property, plaintiff repeatedly informed defendant that he must remove or trim certain vegetation under the project's covenants, conditions, and restrictions, by which defendant was bound. Plaintiff offered to meet informally with defendant or submit the dispute to mediation. Defendant did not meet with plaintiff or remove the vegetation.
Plaintiff also filed a certificate regarding alternative dispute resolution in which plaintiff's counsel declared that on November 7, 2007, plaintiff was notified by Thomas E. Smurro
Plaintiff's counsel also stated in her declaration that the copy of the request sent by certified letter was returned to plaintiff's counsel's office marked "refused"; the request sent by United States mail was not returned. Plaintiff's counsel stated plaintiff "provided [defendant] multiple extensions to respond to the offer to submit the dispute to mediation" and "the thirty (30) day statutory deadline for accepting Alternative Dispute Resolution expired."
On April 30, 2009, plaintiff filed a proof of service of summons on defendant. The proof of service consisted of the declaration of process server Daniel Dalton (the process server), stating that on April 6, 2009, he served copies of the summons, the complaint, the alternative dispute resolution package, the civil case cover sheet, and the civil department calendar scheduling chart (the service documents) on defendant at 94 Adams Street, apartment No. 221, in Waltham, Massachusetts. The process server declared in the proof of service that service was effected by substituted service in which the process server left the documents at defendant's address in the presence of Sheila Cotugno identified as "Off manager to apt complex."
Defendant's appeal is primarily based on an apparent error in identifying Cotugno. Specifically, a box is checked on the proof of service next to the statement: "(home) a competent member of the household (at least 18 years of age) at
The process server also declared in the proof of service that he mailed (by first-class, postage prepaid) copies of the service documents to defendant (pursuant to the declaration of mailing attached to the proof of service) on April 7, 2009. Attached to the proof of service was a declaration of diligence by the process server, which "stat[ed] actions taken first to attempt personal service."
In the attached declaration of diligence, the process server declared: "After a due and diligent effort I have been unable to effect personal service upon [defendant]." He stated he had previously attempted service on April 2, 2009, at 11:07 a.m., at which time a "female inside apartment #221 would not open door"; the process server left his card. He further stated he again attempted service on April 3 at 5:00 p.m., at which time the management company told him "someone was home," but no one answered the door; the process server left another card. Cotugno, identified in the declaration of diligence as the "Office Manager, Apartment Resources," told the process server that defendant "told [Cotugno] not to accept any packages for [defendant]." On April 4, the process server could not get into the apartment building; the management office was closed. The process server rang a buzzer, but there was no answer.
The process server declared he "[c]onfirmed [d]efendant lived at address given by Management Company. Sub served by leaving Last and usual at apartment door on 04/06/2009 at 1:41 PM. Accompanied to apartment door by Sheila Cotugno. Mailed a copy first class on 04/07/2009."
On July 27, 2009, the clerk of the trial court entered defendant's default at plaintiff's request. Following a default prove-up hearing, judgment was entered, which stated in relevant part: "Defendant . . ., you, your tenants, and the occupants of [the property], are to: [¶] a) Remove and/or trim vegetation located at [the property], which has been identified by [plaintiff] as materially impacting the views from neighboring lots; and [¶] b) Maintain the vegetation located at [the property], so that the vegetation does not interfere with the views from neighboring lots. [¶] Good cause appearing therefore, it is further ordered that: [¶] [Plaintiff] is the prevailing party in this action and is entitled to an award against [defendant] for its costs and reasonable attorney fees pursuant to Civil Code §§1354 and 1369.840 and [plaintiff]'s Declaration in the . . . amount of $9,823.00." (Italics, boldface, and some capitalization omitted.)
On December 23, 2009, defendant filed the motion; a motion to quash service of summons; a motion to quash the certificate regarding alternative dispute resolution; a motion seeking relief from entry of the default and default judgment under section 473, subdivisions (a), (b), and (d); and a motion for costs, attorney fees, and sanctions against plaintiff and plaintiff's attorneys (collectively referred to as defendant's motions). In support of defendant's motions, defendant's counsel filed a declaration stating, inter alia, that "[m]ultiple statements in the Certificate Regarding Alternative Dispute Resolution, signed under penalty of perjury by [p]laintiff['s] counsel . . . ARE PATENTLY FALSE. First of all, Defendant Smurro has never communicated with [plaintiff] or its attorneys regarding any of these issues. Secondly, neither Defendant Smurro nor I ever asked for a single extension to respond to the request for [alternative dispute resolution]."
Defendant's counsel also asserted in his declaration: "On or about August 25, 2009 I was in the vicinity of the Santa Ana courthouse. I decided to ascertain whether a lawsuit had been filed by [plaintiff] against Defendant Smurro. I was shocked to learn from the court files that not only had a lawsuit been filed but a request for default had also been entered against Defendant Smurro." Defendant's counsel's declaration also included the following general statement: "To the extent that the Court disagrees with the statutory law, cases, law and/or relief requested in the motions concurrently filed for hearing . . ., then I am hereby requesting relief from default for my client due to my mistake, inadvertence, surprise or neglect."
Defendant also filed a declaration that stated:
In opposition to defendant's motions, plaintiff submitted the declaration of Cotugno, in which she confirmed that she has been the apartment manager for the apartment complex located at 94 Adams Street in Waltham, Massachusetts, since February 2003. She stated defendant resides at apartment No. 221 of that apartment complex and has lived there since she began working at the apartment complex. Cotugno declared, "[i]t is my custom and practice not to accept registered mail or personal service for any of the residents at 94 Adams Street unless I am previously authorized by the resident to do so. I did not accept service of anything on behalf of [defendant]." She also declared that "approximately nine months ago" (the declaration was dated January 5, 2010), she remembered the process server coming to the office and stating he needed to serve defendant. Cotugno recalled telling the process server where defendant lived, but had "no further recollection of events."
Plaintiff also filed a declaration by the process server. In addition to reiterating information already included in the proof of service and the process server's declaration of diligence, the process server's declaration asserted that when he effected substituted service on defendant, Cotugno "accompanied [him] to [defendant's] apartment and witnessed that [the process server] left the documents on [plaintiff]'s usual mailing address." He further declared: "Ms. Cotugno watched from hallway door as I went to [plaintiff's] door."
In support of his reply briefs, defendant filed another declaration which stated he had "not been personally served with a lawsuit at any time in 2009," and he did "not have any actual knowledge of any lawsuit, action or legal proceeding in which [he] need[ed] to defend [him]self."
The trial court denied defendant's motions. The court denied the motion on the following grounds: "There is no showing that Defendant lacked actual knowledge of the lawsuit. All evidence points to the fact that Defendant did in fact have actual knowledge of the lawsuit. Defendant's declaration is silent not only as to why he failed to receive the summons and complaint left at his door and mailed to him, but also silent as to the many documents mailed to both his San Clemente, California and Massachusetts addresses during this litigation. The Proof of Service itself shows a likelihood that Defendant was evading service by the fact that a female occupant would not open the door and the Office Manager indicated to the process server that Defendant told her not to accept any packages for him."
The court denied the motion to quash service of summons because it "is untimely under Code of Civil Procedure section 418.10[, subdivision ](a)." The motion to quash the certificate regarding alternative dispute resolution was denied because "Defendant is in default and has no standing to bring the Motion to Quash Certificate Regarding Alternative Dispute Resolution (`ADR'). [¶] The Motion to Quash Certificate Regarding ADR is also denied on the merits. There is no requirement that defendant know which neighbor complained about his trees. The dispute is between Plaintiff Association and Defendant Smurro, not Defendant Smurro and his neighbor." The trial court further stated, "Motion for Relief of Entry of Default and Default Judgment based on the authorities and declarations presented is denied. Neither Defendant Smurro, nor his attorney, show any mistake, inadvertence, surprise or excusable neglect." The motion for costs, attorney fees, and sanctions was also denied: "Defendant Smurro is in default and nothing in the moving papers established that Plaintiff's counsel should be sanctioned."
Plaintiff filed a motion for an award of postjudgment attorney fees and costs. The trial court granted the motion and awarded plaintiff $5,652.50 in postjudgment attorney fees and costs. Defendant appealed.
Defendant argues the trial court erred in denying the motion because service of summons on defendant was improper and thus void under section 473, subdivision (d); he did not have actual notice of the lawsuit within the meaning of section 473.5, subdivision (a); relief should have been granted under section 473, subdivision (b); and the certificate of alternative dispute resolution is void because it contains perjury. For the reasons we will explain, the trial court did not err.
Defendant argues the default and default judgment are void because the proof of service of summons contained perjury and thus is void. Defendant cites section 473, subdivision (d), which provides in relevant part: "The court may, . . . on motion of either party after notice to the other party, set aside any void judgment or order."
Defendant argues the proof of service of summons is void because it falsely asserts that the process server left the service documents with a competent member of defendant's household at his dwelling house or usual place of abode. Aside from the checked box stating that service of process involved a competent member of defendant's household, the remainder of the proof of service, the process server's declaration of diligence, and the process server's declaration filed in opposition to defendant's motions are uniform. They all state that the process server effected substituted service on defendant by leaving the service documents at defendant's door, in the presence of defendant's apartment complex manager, Cotugno.
The service on defendant in this manner complied with section 415.20, subdivision (b), which provides in part: "If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served . . ., a summons may be served by leaving a copy of the summons and complaint at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left."
Here, the process server declared he had attempted to serve defendant on three previous dates. "`"Ordinarily, . . . two or three attempts at personal service at a proper place should fully satisfy the requirement of reasonable diligence and allow substituted service to be made."'" (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 185.)
Although substantial evidence shows defendant was properly served in compliance with section 415.20, subdivision (b), he contends the reference in the proof of service to effecting service by substituted service on a competent member of defendant's household renders the service on defendant void as a matter of law. Defendant's argument is without merit. It is evident the wrong box was checked on the proof of service. The box stating the substituted service involved a competent member of defendant's household should not have been checked. The box on the following line should have been checked, which states that substituted service was accomplished by leaving the service documents in the presence of a person "apparently in charge at the usual mailing address of the person to be served," whom the process server informed of the general nature of the service documents. Defendant does not contend that Cotugno failed to satisfy those criteria.
In sum, the record does not show plaintiff failed to properly serve defendant. The record shows that the proof of service document itself contains an error; the remainder of the proof of service, the declaration of diligence, and other documents in the record clarify the details regarding the substituted service on defendant. Under these circumstances, the error in checking the wrong box on the proof of service constituted a minor deficiency. As "minor, harmless deficiencies will not be allowed to defeat service" (Bein v. Brechtel-Jochim Group, Inc. (1992) 6 Cal.App.4th 1387, 1394; see Trackman v. Kenney, supra, 187 Cal.App.4th at p. 184), we conclude the error on the proof of service does not render service of process on defendant void.
The trial court properly refused to set aside the default and default judgment under these circumstances.
The trial court did not abuse its discretion by disbelieving, on this record, defendant's assertion he lacked actual notice of the lawsuit. Section 473.5, subdivision (a) provides in part: "When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action." A party may therefore file a motion to set aside a default judgment by "showing a lack of actual notice not caused by avoidance of service or inexcusable neglect." (Trackman v. Kenney, supra, 187 Cal.App.4th at p. 180; Sullivan v. Centinela Valley Union High School Dist. (2011) 194 Cal.App.4th 69, 77 ["Actual notice is express information of a fact, sometimes referred to as `genuine knowledge'"].)
Here, the trial court found defendant had actual notice of the lawsuit and expressed the likelihood that he was evading service. Substantial evidence supported the trial court's findings.
Defendant's declaration did not address whether defendant received the service documents left outside his apartment door by the process server, or the copies of the service documents that were mailed to him by the process server. Furthermore, the trial court's conclusion defendant was evading service was supported by evidence Cotugno was specifically instructed by defendant not to accept packages from anyone on his behalf. In the process server's declaration of diligence, he stated that the first time he attempted to serve defendant, a female inside defendant's apartment would not open the door; he left a card. When the process server attempted to serve defendant at his apartment on the following day, he was informed by a person from the management company that "someone was home," but no one answered the door. The trial court, therefore, did not err by refusing to set aside the default and default judgment based on section 473.5, subdivision (a).
Defendant argues the motion seeking relief from entry of the default and default judgment should have been granted pursuant to section 473, subdivision (b). Section 473, subdivision (b) provides that the court may, "upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." It is "`the duty of every party desiring to resist an action or to participate in a judicial proceeding to take timely and adequate steps to retain counsel or to act in his own person to avoid an undesirable judgment. . . . The only occasion for the application of section 473 is where a party is unexpectedly placed in a situation to his injury without fault or negligence of his own and against which ordinary prudence could not have guarded.'" (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206; Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 229 ["`Mistake is not a ground for relief under section 473, subdivision (b), when "the court finds that the `mistake' is simply the result of professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law"'"]; State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 611-612 ["There is nothing in section 473 to suggest it `was intended to be a catch-all remedy for every case of poor judgment on the part of counsel which results in dismissal'"].)
Although a party seeking relief under section 473 bears the burden of proof (Hearn v. Howard, supra, 177 Cal.App.4th at p. 1205), neither defendant nor defendant's counsel demonstrated that the default and default judgment were entered against defendant because of either's mistake, inadvertence, surprise, or excusable neglect. Section 473, subdivision (b) is therefore inapplicable, and could not serve as the basis for vacating the default and default judgment in this case.
Defendant argues the trial court should have set aside the default and default judgment because the certificate of alternative dispute resolution (filed by plaintiff at the time it filed its complaint against defendant) was "perjurious" and thus void. Citing Civil Code section 1369.560, defendant's argument is based on his assertion the filing of a proper certificate of alternative dispute resolution is jurisdictional.
Civil Code section 1369.560 itself establishes that the filing of the certificate of alternative dispute resolution is not jurisdictional: The trial court can refuse to dismiss a case for failure to comply with this requirement if it would cause a party substantial prejudice. Civil Code section 1369.560 provides: "(a) At the time of commencement of an enforcement action, the party commencing the action shall file with the initial pleading a certificate stating that one or more of the following conditions is satisfied: [¶] (1) Alternative dispute resolution has been completed in compliance with this article. [¶] (2) One of the other parties to the dispute did not accept the terms offered for alternative dispute resolution. [¶] (3) Preliminary or temporary injunctive relief is necessary. [¶] (b) Failure to file a certificate pursuant to subdivision (a) is grounds for a demurrer or a motion to strike unless the court finds that dismissal of the action for failure to comply with this article would result in substantial prejudice to one of the parties." (Italics added.)
Nothing in Civil Code section 1369.560 suggests a default judgment is "void" if a plaintiff fails to file the certificate regarding alternative dispute resolution at the commencement of the lawsuit. As set forth in the statute itself, a defendant may challenge the contents of such a certificate by way of a demurrer or motion to strike. Defendant has failed to cite any legal authority supporting his contention that challenges to the factual assertions made in a certificate regarding alternative dispute resolution may serve as the basis for setting aside a default and default judgment. We therefore do not need to address defendant's specific challenges.
Because we conclude the trial court did not err in refusing to set aside the default and default judgment for all of the reasons described ante, we do not need to address defendant's argument that the trial court should have awarded him attorney fees and costs after setting aside the default and default judgment.
The judgment is affirmed. Respondent shall recover costs on appeal.
O'LEARY, ACTING P. J. and MOORE, J., concurs.
