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Filed 4/29/15 Gregory v. Saldana 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

----

KEN GREGORY,

Plaintiff and Appellant,

v.

RAFAEL SALDANA,

Defendant and Respondent.

C073988

(Super. Ct. No. CVCV112597)

In California, service of process on an individual defendant may be made by 

substitute service on “a person apparently in charge of [the defendant’s] office, place of 

business, or usual mailing address.” (Code Civ. Proc.,1 § 415.20, subd. (b).) Here, when 

plaintiff Ken Gregory (Gregory) sued defendant Rafael Saldana (Saldana) for breach of 

oral contract, the process server left the summons and complaint at a location the trial 

 

1 All further statutory references are to the Code of Civil Procedure.
2

court found was “a valid business address for defendant Saldana,” but not with a “person 

[who was] apparently in charge.” (§ 415.20, subd. (b).) After finding the substitute

service invalid, the trial court set aside a default and default judgment that previously had 

been entered at Gregory’s request. 

On appeal, Gregory challenges the trial court’s order setting aside the default and 

default judgment. We affirm, holding: (1) there was substantial evidence the substitute 

service of the summons and complaint was invalid and there was no actual notice to 

Saldana; (2) the standard of review for setting aside a default judgment is abuse of 

discretion; and (3) the trial court acted within its discretion in granting Saldana’s motion 

to set aside the default and default judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Saldana is in a sole proprietorship doing business as Saldana Bros. Trucking, in 

the business of trucking hay. The “[p]hysical [b]usiness [a]ddress” of Saldana Bros. 

Trucking as listed on its fictitious business name statement is 12996 County Road 102 in 

Woodland. The “[b]usiness [m]ailing [a]ddress” is listed as post office box 584 also in 

Woodland. 

Saldana grew up in Mexico, where he went to school until age 12. Thereafter, he 

did not attend school either in Mexico or California. Saldana “do[es] not read English,” 

so he “rel[ies] on friends to explain to [him] what documents mean if documents are 

presented to [him].” 

Working with Saldana is his brother, Manuel Saldana, who is an employee of 

Saldana in Saldana Bros. Trucking. Saldana’s brother and his brother’s son, Fredi 

Saldana (Fredi), have lived at 34209 County Road 23A since 2010. Saldana has not lived 

there during this time. According to Fredi, “[t]he U.S. Postal Service and other 

carriers . . . sometimes deliver documents and/or packages to 34209 County Road 23A. 

If the mail or package is not addressed to [Fredi], [he] usually ignore[s] it.” Saldana 

“does not come into [34209 County Road 23A] without invitation and does not receive 
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mail there on a regular or any other basis.” Saldana “does not read English and therefore 

[Fredi] feel[s] it is a waste of [Fredi’s] time to give [Saldana] mail because [Saldana]

cannot understand it anyway.” 

Also working with Saldana is his daughter, Linda Saldana, who does the 

paperwork for Saldana Bros. Trucking. Saldana’s daughter sent invoices to Gregory in 

January 2010 and August 2010 listing the address of Saldana Bros. Trucking as “34209 

Hwy 23A” in Woodland. 

In November 2011, Gregory sued Saldana for breach of an oral contract that was 

allegedly entered into in April 2010 regarding Saldana purchasing alfalfa grown by 

Gregory.

On December 14, 2011, Gregory’s attorney mailed to Saldana at “34209 Highway 

23A” copies of the summons, complaint, civil case cover sheet, and notice of case 

management conference, along with a notice and acknowledgement of receipt form. 

According to a declaration filed by Gregory’s attorney, the next day (December 15), 

Saldana called him, said he had received the documents, and wanted to know what they 

were. Gregory’s attorney then explained the documents to him. 

Saldana never returned the notice and acknowledgement of receipt form. 

On January 31, 2012, a process server went to 34209 County Road 23A and left 

with Fredi a copy of the summons and complaint. The proof of service listed “Freddie”

as a “[c]o-[r]esident of [Saldana] and [m]anager of S[aldana] B[ros].” The process 

servicer later mailed copies of the documents to the same address. According to a 

declaration filed by Fredi, he “never told anybody that [he] was a ‘co-resident’ with 

[Saldana].” He “never told anybody that [he] was a [m]anager of S[aldana] B[ros]. and 

[he] ha[s] never been a [m]anager of S[aldana] B[ros].” He “ha[s] never been employed 

by [Saldana] or S[aldana] B[ros]. and ha[s] no relationship with [Saldana] other than 

being his nephew . . . .” 
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In March 2012, Gregory filed a request for entry of default, which the court 

entered on March 16, 2012. The request for entry of default was mailed to “34209 

County Road 23A” on July 11, 2012. 

In August 2012, a default judgment totaling $ 92,098.34 was filed. The judgment

left blank whom the judgment was against. 

In September 2012, Saldana was personally served with an application and order 

to appear for a debtor’s examination on September 20, 2012. 

On November 16, 2012, an amended default judgment was filed naming Saldana 

as the defendant whom the judgment was against. 

On December 14, 2012, a deputy sheriff personally served Saldana with a bench 

warrant that listed the case of “Gregory” “vs.” “Saldana” with a bail amount of 

$93,974.44. Saldana signed the bench warrant, promising to appear in court at a debtor’s 

examination on January 31, 2013. According to a declaration filed by Saldana, he “did 

not know any time before December 14, 2012 that [he] had been sued by [Gregory].” 

December 14, 2012, when he met with the deputy sheriff and was given a bench warrant 

(for failing to appear at an order of examination), was “the first notice [he] had of the . . . 

lawsuit.” 

After Saldana received notice of the lawsuit and bench warrant on December 14, 

2012, it took Saldana “a couple of weeks to have a friend read and explain to [him] what 

it was.” 

On January 31, 2013, Saldana appeared at the debtor’s examination.

On February 15, 2013, Saldana filed in pro. per. a motion to set aside the default

and default judgment because he did not have notice of the lawsuit. In it, he asked for 

“time to find [l]egal [c]ounsel and . . . answer the . . . complaint to supply all 

information.”

On February 21, 2013, Saldana appeared at a continuation of the debtor’s 

examination. 
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On March 11, 2013, Saldana found a lawyer to represent him. 

On March 13, 2013, Saldana’s lawyer filed a motion to set aside the default and 

default judgment. 

On April 24, 2013, the trial court granted the motion to set aside the default and 

default judgment “pursuant to C.C.P. §473.5.” The summons and complaint were left at 

34209 County Road 23A, which was “a valid business address for defendant Saldana, but 

. . . the substitute service of the summons and complaint at that address was not proper 

and valid service.” The motion was “timely made because it was filed within two years 

after entry of the default judgment.” As a “condition to setting aside of the default and 

default judgment,” Saldana has to pay “$2,000 to plaintiff G[regory] because defendant 

S[aldana] was not diligent in moving to set aside the default and default judgment.” 

Gregory filed a timely notice of appeal from the trial court’s order granting relief 

from default and default judgment. 

DISCUSSION

On appeal, Gregory contends that the substitute service was valid, Saldana 

received actual notice, and, applying a de novo standard of review, the trial court erred in 

ruling that Saldana’s motion to set aside the default and default judgment was timely. 

As we will discuss below, we hold: (1) there was substantial evidence the 

substitute service of the summons and complaint was invalid and there was no actual 

notice to Saldana; (2) the standard of review for setting aside a default judgment is abuse 

of discretion; and (3) the trial court acted within its discretion in granting Saldana’s 

motion to set aside the default and default judgment.
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I

There Was Substantial Evidence To Support The Trial Court’s 

Findings That Substitute Service Of The Summons And Complaint 

Were Invalid And There Was No Actual Notice To Saldana

To reach the issue of whether the trial court erred in granting Saldana’s motion to 

set aside the default and default judgment under section 473.5, we must first address the 

threshold issue raised by Gregory of whether the substitute service of the summons and 

complaint was valid. Only if the substitute service was invalid did the trial court have the 

discretion to set aside the default and default judgment. (§ 473.5, subds. (a), (c).) The 

trial court found the service invalid. We review this factual finding for substantial 

evidence. (Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1182.)

Substitute service on an individual may be made “by leaving a copy of the 

summons and complaint at the person’s . . . usual place of business, or usual mailing 

address other than a United States Postal Service post office box, in the presence of . . . 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. Service of a 

summons in this manner is deemed complete on the 10th day after the mailing.” 

(§ 415.20, subd. (b).)

Gregory claims that Saldana was properly served by substitute service under 

section 415.20, subdivision (a). But subdivision (a) is inapplicable here. Saldana

operates his business as a sole proprietorship. Subdivision (a) applies to substitute 

service on corporations (§§ 416.10, 416.20), joint stock companies or associations 

(§ 416.30), unincorporated associations (§ 416.40) and public entities (§ 416.50). (§ 
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415.20, subd. (a).) “ ‘A sole proprietorship is not a legal entity itself. Rather, the term 

refers to a natural person who directly owns the business . . . .’ ” (Providence 

Washington Ins. Co. v. Valley Forge Ins. Co. (1996) 42 Cal.App.4th 1194, 1199.) Thus, 

service on a sole proprietorship is completed in the same manner as service on an

individual, and we turn next to determining whether there was substantial evidence of 

lack of service on Saldana.

A

There Was Substantial Evidence Of Lack Of “Substantial 

Compliance” With The Substitute Service Statute

While it is “ ‘well settled that strict compliance with statutes governing service of 

process is not required,’ ” there must still be “[s]ubstantial [c]ompliance.” (Summers v. 

McClanahan (2006) 140 Cal.App.4th 403, 410.) “[A] finding of substantial compliance 

requires three preconditions.” (Carol Gilbert, Inc. v. Haller (2009) 179 Cal.App.4th 852, 

865.) One, “there must have been some degree of compliance with the offended statutory 

requirements.” (Id. at p. 866.) Two, “the objective nature and circumstances of the 

attempted service must have made it ‘ “ ‘highly probable’ ” ’ that it would impart the 

same notice as full compliance.” (Ibid.) And three, “it must in fact have imparted such 

notice, or at least sufficient notice to put the defendant on his defense. In this regard, it is 

not enough that the process inform the defendant of the fact of a lawsuit, or even of a 

lawsuit in which his name appears. Due process requires notice of ‘the duty to defend.’ ” 

(Ibid.)

Applying these three factors here, there was substantial evidence to support the 

trial court’s finding “the substitute service of the summons and complaint at [34209 

County Road 23A] was not proper and valid service.” 

One, there was substantial evidence of the lack of requisite degree of compliance 

because Fredi was not “a person apparently in charge of [Saldana’s] office, place of 

business, or usual mailing address . . . .” (§ 415.20, subd. (b), italics added.) According 
8

to Fredi’s declaration (which the trial court necessarily credited because of its factual 

finding that substitute service was invalid), he “never told anybody that [he] was a ‘coresident’ with [Saldana].” He “never told anybody that [he] was a [m]anager of 

S[aldana] B[ros.] and [he] ha[s] never been a [m]anager of S[aldana] B[ros].” He “ha[s] 

never been employed by [Saldana] or S[aldana] B[ros]. and ha[s] no relationship with 

[Saldana] other than being his nephew . . . .” 

While Gregory points to the “declaration of diligence” from the process server that 

states to the contrary, the trial court made its own determination of witness credibility. 

The trial court’s determination of controverted facts and implied findings are conclusive 

and will not be disturbed on appeal. (Stafford v. Mach, supra, 64 Cal.App.4th at p.

1182.)

Two, there was substantial evidence that the objective nature and circumstances of 

the service on Fredi did not make it highly probable that it would impart the same notice 

as full compliance. (Carol Gilbert, Inc. v. Haller, supra, 179 Cal.App.4th at p. 866.) On 

January 31, 2012, a process server went to 34209 County Road 23A and left with Fredi a 

copy of the summons and complaint. According to Fredi’s declaration (which, as we 

have explained, the court credited), Saldana “d[oes] not come into [34209 County Road 

23A] without invitation and does not receive mail there on a regular or any other basis.” 

And (which we have earlier recounted), Fredi “never told anybody that [he] was a ‘coresident’ with [Saldana],” he “never told anybody that [he] was a [m]anager of S[aldana] 

B[ros.] and [he] ha[s] never been a [m]anager of S[aldana] B[ros].” He “ha[s] never been 

employed by [Saldana] or S[aldana] B[ros]. and ha[s] no relationship with [Saldana] 

other than being his nephew . . . .” Thus, there was no objective evidence that notice to 

Fredi would result in notice to Saldana.

And three, there was substantial evidence the service here did not give Saldana 

notice of any kind, let alone of his duty to defend. (Carol Gilbert, Inc. v. Haller, supra, 

179 Cal.App.4th at p. 866.) Fredi “usually ignore[s]” mail or packages “not addressed to 
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[him].” And, in the event mail or packages are addressed to Saldana, Fredi “feel[s] it is a 

waste of [his own] time to give [Saldana] mail because [Saldana] cannot understand it 

anyway,” because Saldana “does not read English.” 

B

Gregory’s Contentions Regarding Saldana’s Purported 

Actual Notice Contravene The Standard Of Appellate Review

Gregory contends that Saldana had actual notice of the lawsuit because Saldana 

received a letter sent by Gregory’s trial counsel with copies of the summons, complaint, 

and acknowledgement of service. According to Saldana, however, he “did not know any 

time before December 14, 2012 that [he] had been sued by [Gregory].” He was unable to 

read the letter sent by Gregory’s trial counsel with the copies because he “do[es] not read 

English.” He learned of the lawsuit only when he “received the [b]ench [w]arrant from 

the deputy.” 

Gregory discounts this evidence, stating it is supported only by Saldana’s 

“unsubstantiated assertion,” and there was evidence Saldana “lacked[d] any credibility.” 

Gregory’s attack of a witness’s credibility is misplaced, as it ignores the deference 

that we as an appellate court must give to a trial court’s explicit and implicit factual 

findings (Shamblin v. Brattain (1988) 44 Cal.3d 474, 479) and “presumptions [we] 

indulge[] in favor of [the] correctness” of a trial court’s judgment or order (In re 

Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133). “Even though contrary findings 

could have been made, an appellate court should defer to the factual determinations made 

by the trial court when the evidence is in conflict. This is true whether the trial court’s 

ruling is based on oral testimony or declarations.” (Shamblin, at p. 479.) Here, the 

declaration of Saldana conflicted with that of Gregory’s attorney on when Saldana had

actual notice of the lawsuit. The trial court impliedly credited Saldana’s declaration, and 

we must defer to that factual finding on appeal. 
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II

The Standard Of Review Of The Trial Court’s Order

Setting Aside A Default And Default Judgment Is Abuse Of Discretion

Gregory next contends the standard that governs our review of the trial court’s 

order setting aside the default judgment is a de novo review. His contention does not 

acknowledge the difference between setting aside defaults and default judgments 

involving facial deficiencies in judgments or orders pursuant to section 473, 

subdivision (d) and setting aside defaults and default judgments on affidavits under 

section 473.5, as happened here.

Section 473, subdivision (d) provides as follows: “The court may, upon motion of 

the injured party, or its own motion, correct clerical mistakes in its judgment or orders as 

entered, so as to conform to the judgment or order directed, and may, on motion of either 

party after notice to the other party, set aside any void judgment or order.” Where a 

motion is made under this subdivision based on a factual defect, the motion can be set 

aside only if the facial defect is “ ‘is apparent upon an inspection of the judgment-roll.’ ” 

(Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441.)

In contrast, motions to set aside default judgments under section 473.5 go beyond 

the judgment roll. A motion under section 473.5, subdivision (b) “shall be accompanied 

by an affidavit showing under oath that the party’s lack of actual notice in time to defend 

the action was not caused by his or her avoidance of service or inexcusable neglect.” 

“Upon a finding by the court that the motion was made within the period permitted . . . 

and that his or her lack of actual notice in time to defend the action was not caused by his 

or her avoidance of service or inexcusable neglect, it may set aside the default or default 

judgment on whatever terms as may be just and allow the party to defend the action.” (§ 

473.5, subd. (c).) 

Here, the trial court granted Saldana’s motion to set aside the default and default 

judgment “pursuant to C.C.P. §473.5.” “[W]here a plaintiff has contested a motion to 
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vacate a default judgment by way of affidavits or other evidence that goes beyond the 

judgment roll . . . of necessity our review goes beyond the judgment roll. [Citation.] In 

determining any issues raised by such evidentiary matters, our review is governed by the 

familiar abuse of discretion standard. [Citation.] That standard requires we defer to 

factual determinations made by the trial court when the evidence is in conflict, whether 

the evidence consists of oral testimony or declarations.” (Ramos v. Homeward 

Residential, Inc. (2014) 223 Cal.App.4th 1434, 1440-1441.)

III

The Trial Court Was Within Its Discretion To Grant Saldana’s Motion 

To Set Aside The Default And Default Judgment Under Section 473.5

Gregory makes two arguments in support of his contention the trial court erred in 

setting aside the default. First, he claims Saldana had actual notice of the lawsuit. We 

have already reviewed and rejected this argument in part IB of the Discussion above. 

Second, he claims that Saldana’s motion was not filed within a reasonable time after his 

default was entered. As we explain below, the trial court was within its discretion to 

conclude otherwise.

“The notice of motion shall be served and filed within a reasonable time, but in no 

event exceeding the earlier of: (i) two years after entry of a default judgment against him 

or her; or (ii) 180 days after service on him or her of a written notice that the default or 

default judgment has been entered.” (§ 473.5, subd. (a).) The time for filing a motion

under section 473.5 “expressly commence[s] upon entry of the judgment rather than upon 

entry of the default.” (Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1126.) 

Here, the trial court’s implied finding that the motion was filed and served within 

a reasonable time was supported by the evidence and thus within the trial court’s 

discretion. Saldana “did not know any time before December 14, 2012 that [he] had been 

sued by [Gregory].” On December 14, 2012, when he met with the deputy sheriff and 

was given a bench warrant (for failing to appear at an order of examination), was “the 
12

first notice [he] had of the . . . lawsuit.” On February 15, 2013, which was two months 

after his first notice, he filed in pro. per. his motion to set aside the default. On March 13, 

2013, which was three months after this first notice, his retained counsel filed a motion to 

set aside the default and default judgment. 

To the extent Gregory argues that a three-month delay “absent satisfactory 

explanation for the delay” was a reason to deny Saldana relief from default, it was well 

within the court’s discretion to allow relief from default, because Saldana accounted for 

this delay. After receiving the first notice of the lawsuit and bench warrant on 

December 14, 2012, when he met with the deputy sheriff, it took Saldana “a couple of 

weeks to have a friend read and explain to [him] what it was.” Saldana “do[es] not read 

English,” so he “rel[ies] on friends to explain to [him] what documents mean if 

documents are presented to [him].” About two weeks after having the documents 

explained to him, Saldana filed in pro. per. his motion to set aside the default and default 

judgment on February 15, 2013. In his motion, he explained that he needed time to find 

an attorney to represent him. In the interim, Saldana appeared at a debtor’s examination

on January 31, 2013, and a continuation of that examination on February 21, 2013.

2

 Less 

than one month after filing his pro. per. motion to set aside the default, Saldana found a 

lawyer to represent him on March 11, 2013. Within two days of finding a lawyer, 

 

2 Gregory claims that Saldana’s personal appearances at the debtor’s examinations 

“waiv[ed] any alleged defect in connection with the service of summons, complaint 

and/or default judgment documents making a general appearance in the action.” Gregory 

does not explain how these involuntary appearances at debtor’s examinations are the 

same as general appearances in the underlying action. Section 1014 defines what 

constitutes a defendant’s “appear[ance] in an action” and explains it is “when the 

defendant answers, demurs, files a notice of motion to strike, files a notice of motion to 

transfer . . . , moves for reclassification . . . , gives the plaintiff written notice of 

appearance, or when an attorney gives notice of appearance for the defendant.” This 

definition does not include the involuntary appearances at debtor’s examinations that 

Saldana made here.
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Saldana, through his lawyer, filed the instant motion to set aside the default judgment on 

March 13, 2013. These explanations for Saldana’s three-month delay support the trial 

court’s implied finding of reasonableness.

Finally, we note this implied finding was consistent with the trial court’s order 

requiring Saldana to pay $2,000 to Gregory because, as the trial court put it, Saldana was 

not “diligent” in moving to set aside the default and default judgment. The trial court had 

the discretion to impose this “term” (the payment of $2,000) because there was evidence 

it was “just” under the circumstances. (§ 473.5, subd. (c) [“Upon a finding by the court 

that the motion was made within the period permitted . . . and that his or her lack of 

actual notice in time to defend the action was not caused by his or her avoidance of 

service or inexcusable neglect, it may set aside the default or default judgment on 

whatever terms as may be just and allow the party to defend the action”].) Gregory’s

counsel attached a declaration in opposition of the motion to set aside the default

judgment. In it, Gregory’s counsel declared that because of Saldana’s “delay” in 

retaining an attorney and moving to set aside the default judgment, Gregory had to incur

additional attorney fees and was unable to timely pay off a crop loan, causing Gregory to 

have to sell some farm equipment. The trial court reasonably could have credited the 

evidence that Saldana did not have actual notice of the lawsuit until December 14, 2012, 

given his inability to read English, which caused him greater delay in taking action to 

defend himself against the lawsuit, but that the three-month delay still showed a lack of 

diligence, requiring monetary compensation to Gregory for expenses he incurred because 

of that delay.
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DISPOSITION

The judgment (order setting aside the default and default judgment) is affirmed. 

Saldana is entitled to his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1)&(2).)

 ROBIE , Acting P. J.

We concur:

 MURRAY , J.

 HOCH , J.