Barnes-Boers v. Tozier

Filing 35

MEMORANDUM and ORDER signed by District Judge Morrison C. England, Jr on 4/6/17 ORDERING that the Defendant's 31 Motion to Set Aside Default Judgment and Motion to Quash Service are GRANTED, while Defendant's Motion to Dismiss is DENIED. (Becknal, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BECKY BARNES-BOERS,

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Plaintiff,

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No. 2:13-cv-01555-MCE-CMK

v.

MEMORANDUM AND ORDER

HAROLD D. TOZIER, in his individual
and representative capacity as Trustee,
Tozier Family Revocable Trust; and
Does 1–10,
Defendant.

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Through this lawsuit, Plaintiff Becky Barnes-Boers seeks injunctive and monetary

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relief for alleged violations of the Americans with Disabilities Act, the Unruh Civil Rights

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Act, and the California Disabled Persons Act against Defendant Harold D. Tozier.

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Plaintiff also asserts a claim for negligence against Defendant based on the

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aforementioned statutory violations. The gravamen of Barnes-Boers’s claim is that a

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property owned by Tozier is not sufficiently accessible to wheelchairs. Before the Court

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is Defendant’s Motion to Set Aside Default Judgment, Motion to Quash Service, and

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Motion to Dismiss for Failure to Serve Process. ECF No. 31. For the following reasons,

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Defendant’s Motion to Set Aside Default Judgment and Motion to Quash Service are

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GRANTED, while Defendant’s Motion to Dismiss is DENIED.1

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BACKGROUND

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This case has a long and tortured procedural history. Plaintiff filed her complaint

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on July 30, 2013. ECF No. 1. Less than three months later, she filed an Application for

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Order for Publication of Summons. ECF No. 5. That motion was improperly noticed,

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and was not set for a hearing until the Court did so of its own motion on August 11,

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2014. ECF No. 6. Later that month, the motion was denied for lack of supporting

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evidence, and Plaintiff was given leave to file an amended motion. ECF No. 9.

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Plaintiff filed an amended motion on September 16, 2014. ECF No. 10. That

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motion was once again deficiently filed. Plaintiff correctly filed the motion several weeks

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later on October 1, 2014. ECF No. 12. The Court ultimately denied the motion on

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November 26, 2014, because Plaintiff did not reasonably exhaust efforts to serve

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process on Defendant. ECF No. 14. Her efforts were limited to three brief visits to a

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locked gate outside Defendant’s residence in Oroville and a visit to a business address

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that shares Defendant’s name—Tozier Office Products—where Plaintiff was advised

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Defendant “does not ever come in.” Id. at 2. The Court also noted that while notice of

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the motion had been given to Defendant’s attorney, Plaintiff did not ask the attorney

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about the location of his client. Id. at 5 n.3.

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On February 24, 2015, the Court referred the case to Alternative Dispute

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Resolution and stayed the matter. ECF No. 15. After almost four months of silence from

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the parties, on June 15, 2015, the Court ordered Plaintiff to file a status report. ECF

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No. 16. Ten days later, Plaintiff filed such a report. ECF No. 18. On August 31, 2015,

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Plaintiff requested an entry of default, which was entered by the Clerk. ECF Nos. 20–21.

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Because oral argument would not be of material assistance, the Court ordered this matter
submitted on the briefs. E.D. Cal. Local R. 230(g).

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On January 21, 2016, the Court vacated the entry of default due to the stay. ECF

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No. 22. In the same January 21, 2016 Order, however, the Court also lifted the stay and

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ordered Plaintiff to serve Defendant with a copy of its order doing so. Id.

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Almost eight months later, on August 10, 2016, the Court ordered Plaintiff to show

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cause why the case should not be dismissed for failure to prosecute. ECF No. 10. Six

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days later, Plaintiff filed a certificate of service claiming that Defendant had been

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properly served with the Court’s order lifting the stay by leaving a copy with an employee

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at Tozier’s Office Products. ECF No. 24. The next month, Plaintiff requested and

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received another entry of default. ECF Nos. 26–27. Despite her earlier claim that

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service had been completed, Plaintiff once again filed a motion for service of process by

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publication on November 7, 2016. ECF No. 29. Because of this contradiction, the Court

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denied the motion. ECF No. 30.

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Finally, on December 28, 2016, Defendant filed motions to set aside the default,

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quash service, and dismiss for failure of service. ECF No. 31. In those motions,

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Defendant claims he had no notice of the lawsuit until he “indirectly learned about [it]

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despite never being served.” Id. at 2. He does not, however, state when he learned of

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the suit. The Court here does not set out to determine when Defendant learned of the

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suit, but it is worth noting that it is plausible that he had actual notice of the suit in 2013

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when he retained his original counsel in this matter, Mark Emmett. See Decl. of Harold

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Tozier, ECF No. 31-2, ¶ 5. Plaintiff has also provided evidence that the summons and

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complaint were sent by U.S. Mail to the address Defendant admits is his home address.

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See Decl. of Tozier, ¶ 2 (identifying the address of Tozier’s home since 2002); Decl. of

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Raymond G. Ballister, ECF No. 5-1, ¶¶ 8–9 (stating that the summons and complaint

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were sent to the address identified by Tozier). Furthermore, Defendant hired a Certified

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Access Specialist to inspect the property and—though he claims “no improvements were

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necessary because the building had not been remodeled since 1989”—“out of an

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abundance of caution” he made recommended improvements. Def.’s Mem. of P & A in

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Supp. of Def.’s Mots., ECF No. 31-1, at 3 n.1. At the same time, though, Plaintiff claims
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he did so not because he had actual notice of the suit, but because he “hear[d a] rumor

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that [h]e had been sued for an ADA violation.” Decl. of Tozier, ¶ 6.

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DISCUSSION

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The Court addresses each of Defendant’s three motions in turn.

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A.

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Under Federal Rule of Civil Procedure 55(c), “the court may set aside an entry of

Motion to Set Aside Default

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default for good cause.” “To determine ‘good cause,’ a court must ‘consider[ ] three

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factors: (1) whether [the party seeking to set aside the default] engaged in culpable

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conduct that led to the default; (2) whether [it] had [no] meritorious defense; or

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(3) whether reopening the default judgment would prejudice’ the other party.” United

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States v. Signed Personal Check No. 730 of Yubran S. Mesle, 615 F.3d 1085, 1091

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(9th Cir. 2010) (alterations in original) (quoting Franchise Holding II, LLC v. Huntington

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Rests. Grp., Inc., 375 F.3d 922, 925-26 (9th Cir. 2005)). “[J]udgment by default is a

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drastic step appropriate only in extreme circumstances.” Id. However, the presence of

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any one of these factors is sufficient to refuse to set aside a default. Id.

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Plaintiff has failed to show that any of the three factors are present here. Plaintiff

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has provided no evidence that setting aside the default would be prejudicial, and the age

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of Defendant’s buildings appears to be a potentially meritorious defense. See Def.’s

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Mem. of P & A in Supp. of Def.’s Mots., at 3 n.1 (“Mr. Tozier was informed that no

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improvements were necessary [under the ADA] because the building had not been

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remodeled since 1989.”) Defendant has also yet to be properly served. Though it is

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arguable that Defendant knew of the lawsuit—he retained counsel when it was originally

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filed in 2013—actively avoided service, and refused to respond to Plaintiff’s service

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letters, Plaintiff has not shown that the “drastic step” of the entry of default judgment is

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appropriate here. Thus Defendant’s Motion to Set Aside Default is GRANTED.

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B.

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Plaintiff claimed that she properly served Defendant by leaving a copy with an

Motion to Quash Service

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office manager of Tozier’s Office Products. Under California law, “a summons may be

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served by leaving a copy of the summons and complaint during usual office hours in his

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or her office.” Cal. Civ. Proc. Code § 415.10. Tozier’s Office Products, however, is not

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Defendant’s office or place of business. He avers he is an absentee landlord and that

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the owner of Tozier’s Office Products is his daughter. Decl. of Tozier, ¶¶ 3–4

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Accordingly, Defendant was not properly served.
Plaintiff only argues that service at Tozier’s Office Products is proper because

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Defendant’s “land holdings are his only apparent business,” and that “California’s

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service . . . acts are to be liberally construed.” Pl.’s Opp’n, ECF No. 32, at 2–3. No

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matter how liberal a construction is given to California service law, service at Tozier’s

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Office Products is insufficient because it is not Defendant’s office or place of business.

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Nor would demonstrating that the service attempted resulted in actual notice of the

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lawsuit be sufficient under California law. See Am. Express Centurion Bank,

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199 Cal. App. 4th 383, 392 (2011) (“Actual notice of the action alone, however, is not a

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substitute for proper service and is not sufficient to confer jurisdiction.”). Accordingly,

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Defendant’s Motion to Quash Service is GRANTED.

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C.

Motion to Dismiss for Insufficient Service

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Defendant finally moves under Rule 12(b)(5) to dismiss the complaint for

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insufficient service of process. At the time the complaint was originally filed, Rule 4(m)

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required service to be completed within 120 days. Fed. R. Civ. P. 4(m) (2013). Plaintiff

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failed to do so, and thus she must demonstrate “good cause” for failing to do so. See id.

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(“[I]f the plaintiff shows good cause for the failure, the court must extend the time for

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service for an appropriate period.”). While the Court found Plaintiff’s original attempts to

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serve process less than “exhaustive,” Order, ECF No. 14, at 4, the record shows good

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cause for Plaintiff’s subsequent failure to provide proper service.

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After the denial of service by publication, “Plaintiff hired a specialty process

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server,” who staked out Defendant’s home for “roughly 20 hours.” Decl. of Dennis Price,

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ECF No. 32-1, ¶ 5. The process server also spoke to two individuals who left the home,

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but neither had apparent authority and both claimed to not know of Defendant’s

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whereabouts. Id. Furthermore, as described above, it is possible that Defendant

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purposefully avoided being served. A copy of the summons and complaint was sent to

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what he admits is his home address, likely giving him actual notice of the suit filed

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against him. He also retained counsel in 2013, and counsel received notice of Plaintiff’s

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original motion for service by publication. Defendant, however, avoided being personally

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served despite a stakeout of his home. Accordingly, Defendant’s Motion to Dismiss is

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DENIED.

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CONCLUSION

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For the reasons provided, Defendant’s Motion to Set Aside Default Judgment and

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Motion to Quash Service are GRANTED, while Defendant’s Motion to Dismiss is

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DENIED.

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IT IS SO ORDERED.
Dated: April 6, 2017

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