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Joseph Helm v. Michael Petz

May 13, 2013

JOSEPH HELM, PLAINTIFF AND APPELLANT,
v.
MICHAEL PETZ, DEFENDANT AND RESPONDENT.



(Super. Ct. No. 39201100259419CUPOSTK)

The opinion of the court was delivered by: Raye , P. J.

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Plaintiff Joseph Helm obtained a $3.6 million default judgment against defendant Michael Petz. The trial court subsequently granted Petz's motion to set aside his default and the 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.*fn1

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 § 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. (Code Civ. Proc., §§ 473, 473.5.)*fn2 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.*fn3 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 ...


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