Filed 9/18/24 Mediterranean Shipping Co. v. Duron Trucking Services CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

MEDITERRANEAN SHIPPING 

COMPANY (USA), Inc.,

Plaintiff and Respondent,

v.

DURON TRUCKING SERVICES,

Inc.,

Defendant and Appellant.

 B331941

 (Los Angeles County

 Super. Ct. No. 22PSCV00787)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Peter A. Hernandez, Judge. Affirmed.

Anderson LeBlanc, and Jeff W. LeBlanc for Defendant and 

Appellant.

Steven A. Booska for Plaintiff and Respondent.

________________________
2

Duron Trucking Services, Inc. (DTS) appeals the trial 

court’s denials of its two consecutive motions to set aside a 

default judgment taken by Mediterranean Shipping Company 

(USA) Inc. (MSA). Because the trial court acted within its 

discretion, both in declining twice to vacate the default judgment 

and in ruling the second motion failed to comply with Code of 

Civil Procedure section 1008 requirements, we affirm.

1

FACTS AND PROCEDURAL SUMMARY

On July 28, 2022, MSA filed a complaint against DTS to 

recover amounts owed. On October 12, 2022, MSA personally

served the complaint on DTS’s registered agent for service of 

process. On November 15, 2022, following DTS’s failure to 

answer, MSA filed a request for entry of default judgment, which 

was likewise served on DTS’s registered agent. On November 15, 

2022, the trial court entered DTS’s default. On December 9, 

2022, the trial court entered default judgment in favor of MSA.

In January 2023, MSA, enforcing its judgment, levied a 

DTS bank account, after which DTS requested, and MSA 

declined, to stipulate to vacate the default judgment. 

Subsequently, DTS filed two consecutive motions to set aside the 

default judgment, each of which the trial court denied.

I. DTS’s First Set-aside Motion

On March 3, 2023, DTS filed a motion to set aside the 

default judgment under sections 473, subdivision (b), and 473.5. 

DTS represented that it only learned of the action as a result of 

the bank levy, that it was “not served,” and that relief was also 

proper in light of the “existence” of “mistake, inadvertence, or 

excusable neglect.” In support of its contentions, DTS submitted

1 All further statutory references are to the Code of Civil 

Procedure unless otherwise indicated. 
3

a declaration of its owner-manager Olga Duron (Duron), stating:

“Neither I, nor to the best of my knowledge was DTS’[s] agent for 

service of process ever served any Court paperwork in this 

matter. I only became aware that there may be an issue when I 

received a notice from the San Mate[o] county sheriff about a levy 

on our accounts which I received in late January 2023. . . . Upon 

receiving the San Mateo notice, I had no idea what it was about, 

but immediately contacted my attorney[.]”

On May 22, 2023, MSA filed its opposition, which pointed

out that DTS had not provided any factual basis for its 

contentions of nonservice or excusable neglect, and that Duron’s 

declaration did not, in fact, rebut service, as it only established

that she was not served. A declaration from MSA’s counsel, 

submitted in support of its opposition, set forth that MSA, prior 

to effectuating service, researched California Secretary of State 

records and thereafter instructed a registered process server to 

personally serve the summons and complaint on DTS’s registered 

agent, and to subsequently effectuate service by first-class mail of 

MSA’s request for entry of default. MSA’s opposition included 

copies of its proof of personal service of the summons and 

complaint, proof of mailing of the request to enter default, and 

California Secretary of State records showing that MSA had 

correctly served DTS’s registered agent for service of process. 

On June 9, 2023, the trial court denied DTS’s first set-aside 

motion, finding DTS had not made the requisite showing under 

either section 473, subdivision (b), or section 473.5, and that it

had also failed to show nonservice.2 With regard to DTS’s claim 

2 Although the trial court’s order makes reference to 

“substitute service,” of the summons and complaint, the proof of 
4

that it was “not served,” the trial court further observed that a 

claim of nonservice is properly brought under subdivision (d) of 

section 473, which DTS failed to raise in its notice of motion, and 

that, in any event, DTS had not rebutted the declaration of 

service. The trial court also sustained MSA’s hearsay objection to 

Duron’s statement that “to the best of [her] knowledge” DTS’s 

agent for service was not served. 

II. DTS’s Second Set-aside Motion

On June 9, 2023, DTS filed its second motion to set aside 

the default judgment. The second set-aside motion again sought 

relief under sections 473, subdivision (b), and 473.5, and again 

claimed that DTS was “not served.” The second set-aside motion 

acknowledged that it was “substantively similar to one filed in 

March 2023,” and that DTS’s earlier motion was still under 

submission, and further stated, “[DTS] is filing this [m]otion with 

a significantly reinforced declaration to address the Court’s 

concerns at the June 5, hearing and to preserve [its] rights.”

The “reinforced” Duron declaration submitted in support of 

DTS’s second set-aside motion once again included the statement, 

“Neither I, nor to the best of my knowledge was DTS’[s] agent for 

service of process ever served” and further stated, “I only became 

aware that there may be an issue when I received a notice from 

the San Mate[o] county sheriff about a levy on our accounts. . . . 

In particular, I did not receive a copy of the Summons and 

Complaint or any Notice of Entry of Default or Default.” 

On the critical issue of service made on DTS’s registered 

agent for service of process, the revised Duron declaration stated: 

“On June 9, 2023, I telephoned the agent for service of process 

service indicates service submitted of the summons and 

complaint was effectuated by personal service. 
5

that I have listed on the secretary of state website to inquire as to 

why I never received any notice of the lawsuit. After talking to 

Colleen Cain (of Cain and Associates), she sent m[e] a screen shot 

of sending out the Summons and Complaint, but it was sent to an 

incorrect phone number. That appears to be why I never received 

notice.”

MSA’s opposition argued DTS’s second set-aide motion was 

“identical, typos and all” to the first one and was an improper 

repetitive motion under section 1008, both because it was 

untimely under subdivision (a) of that section, and because it 

failed to show new or different facts as required by 

subdivision (b). MSA again made objections to the Duron 

declaration, pointed out that the newer motion again lacked the 

evidentiary support required for relief, and further argued that 

DTS’s failure to comply with section 1008’s requirements 

warranted sanctions.

On July 24, 2023, the trial court denied DTS’s second setaside motion, finding that DTS had once again failed to make a 

proper showing under either section 473, subdivision (b), or

section 473.5. With respect to the renewed assertion of 

nonservice, the trial court ruled that, as was the case with DTS’s 

first motion, such a motion would fall under subdivision (d) of 

section 473, which DTS again did not raise in its notice of motion 

and, in any event, DTS failed to rebut the presumption of service. 

The trial court further ruled that DTS’s requests for relief under 

sections 473, subdivisions (b) and 473.5, as well as its request for 

relief on grounds of “nonservice” to the extent the claim of 

nonservice was brought under 473, subdivision (d), were all 

summarily denied for failure to comply with section 1008. 

The trial court made no ruling on MSA’s evidentiary objections, 
6

finding them unnecessary to the court’s determination, and made 

no ruling on MSA’s sanctions request.

DISCUSSION

DTS contends the trial court abused its discretion by 

denying DTS’s two motions to set aside default judgment in favor 

of MSA. We find the trial court committed no error in ruling DTS 

failed, in both its first and second set-aside motions, to carry its 

burden under sections 473, subdivision (b), and 473.5, and 

additionally failed to comply with section 1008 in its second 

motion. The trial court likewise committed no error in declining 

to invoke its inherent powers under section 128, subdivision 

(a)(8) to set aside judgment. Accordingly, we affirm. 

I. Standard of Review

A motion to vacate default judgment under section 473, 

subdivision (b), which permits relief from a default taken through 

a party’s “mistake, inadvertence, surprise, or excusable neglect” 

is “ ‘ “ ‘addressed to the sound discretion of the trial court, and in 

the absence of a clear showing of abuse . . . will not be disturbed 

on appeal.’ ” ’ ” (Austin v. Los Angeles Unified School Dist. (2016) 

244 Cal.App.4th 918, 929 (Austin).) Trial court rulings on 

motions to vacate default judgment pursuant to section 473.5, on 

grounds that service of summons has not resulted in actual notice 

to the defaulting party, are likewise reviewed for abuse of 

discretion (Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852,

861), as are trial court rulings on motions for reconsideration 

pursuant to section 1008 (New York Times Co. v. Superior

Court (2005) 135 Cal.App.4th 206, 212 (New York Times Co.)).

A motion addressed to the trial court’s inherent power under 
7

section 128, subdivision (a)(8), is similarly reviewed for abuse of 

discretion. (In re Joshua G., (2005) 129 Cal.App.4th 189, 199.)

Although the test for abuse of discretion is “ ‘whether the 

trial court exceeded the bounds of reason[,]’ ” a trial court order

denying relief under section 473 is “ ‘ “scrutinized more carefully 

than an order permitting trial on the merits.” ’ ” (Austin, supra,

244 Cal.App.4th at pp. 929, 931.)

II. The Trial Court Acted Well Within Its Discretion 

The trial court acted well within its discretion in ruling 

DTS failed, in both its first and second set-aside motions, to carry 

its burden under sections 473, subdivision (b), and 473.5, and 

additionally failed to comply with section 1008 in its second 

motion. The trial court likewise committed no error in declining

to invoke its inherent powers under section 128, subdivision 

(a)(8) to set aside judgment. Accordingly, we affirm. 

A. The Statutes Governing DTS’s Motions for Relief 

1. Section 473, Subdivision (b)

Section 473, subdivision (b) authorizes the trial court to 

relieve a party from an adverse judgment taken through 

“mistake, inadvertence, surprise, or excusable neglect.” Although 

the statute is to be “liberally construed” in favor of adjudication 

on the merits, the burden is on the moving party to show a 

satisfactory excuse and appropriate diligence. (Luz v. Lopes

(1960) 55 Cal.2d 54, 62.) The words mistake, inadvertence, 

surprise, or excusable neglect “ ‘are not meaningless, and the 

party requesting such relief must affirmatively show that the 

situation is one which clearly falls within such category.’ ”

(Kendall v. Barker (1988) 197 Cal.App.3d 619, 623-625; Estate of 

Wolper (1956) 146 Cal.App.2d 249, 251.) A movant’s burden 

under section 473, subdivision (b) is a double one, requiring the 
8

party to show a satisfactory reason for the default and diligence 

in seeking relief. (Hopkins &Carley v. Gens (2011) 200 

Cal.App.4th 1401, 1410; Huh v. Wang (2007) 158 Cal.App.4th

1406, 1420.)

2. Section 473.5

Section 473.5 empowers the trial court to grant relief from 

judgment in instances where service of the summons has not 

resulted in actual notice to a party in time to defend the action

and is “chiefly designed to take care of the situation where a 

proper constructive service was made, e.g., by publication or 

mailing.” (8 Witkin, Cal. Procedure (6th ed. 2024) Attack on 

Judgment in Trial Court, § 217.) A corporation receives “actual 

notice” when service is completed on its agent for service of 

process “because the corporation has expressly held that person 

out to the world as authorized to receive notice of actions.” (Pulte 

Homes Corp. v. Williams Mechanical, Inc. (2016) 2 Cal.App.5th 

267, 274 (Pulte); see also Sporn v. Home Depot USA, Inc. (2005) 

126 Cal.App.4th 1294, 1301 [corporate entity seeking relief from 

judgment had actual notice of suit both by service on its 

registered agent and by receipt of documents in corporation’s inhouse department]; § 416.10 [service of a corporation is 

effectuated by service upon its registered agent].)

3. Section 1008

Section 1008 authorizes a party to seek reconsideration of 

an adverse ruling based upon a showing of “new or different 

facts, circumstances, or law.” A party seeking reconsideration 

“ ‘must provide a satisfactory explanation for the failure to 

produce the evidence at an earlier time.’ ” (New York Times Co., 

supra, 135 Cal.App.4th at p. 212; accord Torres v. Design Group

Facility Solutions, Inc. (2020) 45 Cal.App.5th 239, 243.)
9

“ ‘ “[T]he moving party’s burden is the same as that of a party 

seeking new trial on the ground of ‘newly discovered evidence, 

material for the party making the application, which he could 

not, with reasonable diligence, have discovered and produced at 

the trial.” ’ ” (Baldwin v. Home Savings of America (1997)

59 Cal.App.4th 1192, 1198, italics omitted.) An order denying a 

motion for reconsideration made pursuant to subdivision (a) is 

not separately appealable. However, if the order that was the 

subject of a motion for reconsideration is appealable, the denial of 

the motion for reconsideration is reviewable as part of an appeal 

from that order. (§ 1008, subd. (g).)

Section 128, subdivision (a)(8) sets forth the trial court’s 

inherent power to “control its process and orders so as to make 

them conform to law and justice.”

B. The Trial Court’s Denial of DTS’s First Motion

In its denial of DTS’s first set-aside motion, the trial court, 

observing the absence of specific facts in both the motion and the 

Duron declaration, found DTS “failed to articulate any ‘mistake, 

inadvertence, surprise, or excusable neglect’ entitling it to 

discretionary relief from default” under section 473

subdivision (b). With respect to section 473.5, the trial court 

found that DTS failed to provide credible evidence that it did not 

learn of the action in time to defend itself and, moreover, 

“tellingly, fail[ed] to rebut” the contents of the proof of service. 

The trial court also rejected DTS’s claim that it was “not served,” 

noting preliminarily that such an argument would fall under 

section 473, subdivision (d), which was not raised in the notice of 

motion, and that, in any event, the proof of service established 

that service was, in fact, effectuated on DTS’s registered agent. 
10

The trial court acted well within its discretion. In addition 

to the trial court’s finding that the conclusory Duron declaration 

failed to supply information or evidence supporting DTS’s claims 

of excusable neglect or nonservice, we further note that Evidence 

Code section 647 establishes a presumption as to the facts stated 

in the returns of service, and that DTS received “actual notice” 

by virtue of personal service completed on its registered agent. 

(Pulte, supra, 2 Cal.App.5th at p. 274.) We also note that DTS’s 

contentions are internally inconsistent. DTS’s categorical 

assertion that it was “not served” is at odds with its 

representation that relief is proper because “mistake, 

inadvertence, or excusable neglect exist.” Nor did the trial court 

err in declining to invoke section 128, subdivision (a)(8) to vacate 

default. In support of its urging that the court apply its inherent 

powers under section 128, subdivision (a)(8), DTS argued, “It 

would be an injustice and failure of the legal system[] to punish 

the young college student unfamiliar with the intricacies of the 

law.” The statement was both unsupported by evidence and 

inconsistent with the record. The default judgment taken by 

MSA was against a corporation, and there was no evidence before 

the trial court that a “young college student” would be “punished” 

as a result. 

Critically, DTS, a corporation, did not provide a declaration 

from its registered agent whose acceptance of service of the 

summons and complaint resulted in actual notice to the entity

under Pulte, and the Duron declaration supplied no information 

as to what happened to the summons and complaint after it was 

properly and legally served. The trial court had no factual basis 

upon which to find mistake, inadvertence, or excusable neglect
11

and committed no error in declining to vacate the default 

judgment. 

C. The Trial Court’s Denial of DTS’s Second Motion

The trial court’s denial of DTS’s second set-aside motion 

was likewise a proper exercise of its discretion. After observing 

that both the first and second motion sought relief under sections

473, subdivision (b), and 473.5, the trial court summarily denied 

relief pursuant to those statutes under section 1008, subdivision

(b). Additionally, the trial court, referring back to its earlier 

analysis and ruling on DTS’s first motion, once again found DTS 

failed to carry its burden of providing evidence under sections

473, subdivision (b) and 473.5 and further found the request for 

relief under section 473, subdivision (b) untimely as the June 9, 

2023 filing date was in excess of six months from the November 

15, 2022 entry of default. With regard to DTS’s renewed 

contention that it was “not served,” the trial court observed that, 

as was the case with DTS’s first motion, DTS had not sought 

relief for nonservice in its notice of motion and that, in any event, 

DTS had once again failed to rebut that service was effectuated 

on its registered agent. The trial court further ruled that, to the 

extent DTS’s request for relief for nonservice was based on 

section 473, subdivision (d), that request was also summarily 

denied for failure to comply with section 1008. 

We find no error in the trial court’s ruling on DTS’s second 

motion. In addition to failing to supply “new or different facts” 

and a “satisfactory explanation for the failure to produce the 

evidence at an earlier time” (New York Times Co., supra, 135 

Cal.App.4th at p. 212), we observe that the revised Duron 

declaration indicates DTS’s owner-manager contacted its agent 

for service on June 9, 2023, four days after the initial hearing on 
12

DTS’s first motion and more than three months after DTS filed 

its first motion to set aside default. The timing of that inquiry 

demonstrates the absence of diligence required for a meritorious 

set-aside motion under sections 473, subdivision (b) or 473.5, nor 

did DTS provide any “satisfactory explanation” (New York Times, 

Co., supra, at p. 212) for its failure to provide the newly 

submitted information earlier. Moreover, even taken at face 

value, the revised declaration’s indication that DTS first 

contacted its registered agent on June 9, 2023, indicates the 

earlier declaration’s statement, “Neither I, nor to the best of my 

knowledge was DTS’s agent for service of process ever served” 

was disingenuous in that Duron had not made any inquiry of 

DTS’s agent and only contacted the agent much later, after MSA, 

in its opposition to DTS’s first motion, highlighted the 

deficiencies in the earlier declaration. We also note that the

second motion failed to provide a declaration from DTS’s agent 

and therefore lacked competent evidence of what, exactly, 

happened to the summons and complaint after DTS was properly 

and legally served. The trial court acted well within its 

discretion in determining that DTS had failed to comply with 

section 1008, subdivision (b) and had also failed, for the second 

time, to rebut the proof of service or to set forth facts showing its 

inaction was sufficiently excusable to warrant relief.
13

DISPOSITION

The judgment is affirmed. Respondent MSA is awarded its 

costs on appeal.

DAVIS, J.

*

WE CONCUR:

MOOR, Acting P. J. 

KIM, J.

* Judge of the Los Angeles County Superior Court, assigned 

by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.