Cecelia Stewart v. El Segundo Unified School District, et al.

(Torrance Courthouse: Dept. P) September 10, 2026 DEPARTMENT P LAW AND MOTION RULINGS

Moving Party: Defendant and Cross-Defendant Davin Sutherland, erroneously sued as Davin Southerland Responding Party: None

The court considered the moving papers. Sutherland's Motion to Vacate Default is GRANTED.

PROCEDURAL BACKGROUND

On December 30, 2022, Plaintiff Cecelia Stewart ("Plaintiff") filed a complaint against Defendants El Segundo Unified School District (the "District"), Davin Sutherland (erroneously sued as "Davin Southerland"), Manav Kapoor, and DOES 1 through 200, inclusive (collectively, "Defendants"), alleging fifteen causes of action for: (1) Negligence; (2) Negligent Hiring, Training, Supervision, and Retention; (3) Failure to Discharge or Perform Mandatory Duties and Failure to Supervise per Education Code Sections 44807 and 5530; (4) Negligent Infliction of Emotional Distress; (5) Violation of Mandatory Duty; (6) Childhood Sexual Assault; (7) Sexual Battery; (8) Intentional Infliction of Emotional Distress; (9) Violation of the Gender Violence Statute; (10) Childhood Sexual Assault; (11) Sexual Battery; (12) Intentional Infliction of Emotional Distress; (13) Violation of the Gender Violence Statute; (14) Childhood Sexual Assault; and (15) Cyberbullying.

On August 7, 2023, Plaintiff filed a first amended complaint against Defendants, alleging the same fifteen causes of action.

On May 31, 2024, Plaintiff filed a second amended complaint against Defendants, alleging the same fifteen causes of action.

On September 30, 2024, Plaintiff filed a third amended complaint against Defendants, alleging thirteen causes of action.

On October 2, 2024, the District filed a cross-complaint against Cross-Defendants Davin Sutherland (erroneously sued as "Davin Southerland"), Manav Kapoor, and ROES 1 through 25, inclusive, alleging two causes of action for: (1) Indemnity; and (2) Contribution.

On July 18, 2025, Plaintiff filed a fourth amended complaint ("Fourth AC") against Defendants, alleging thirteen causes of action for: (1) Negligence; (2) Negligent Hiring, Supervision, Training, and Retention; (3) Failure to Discharge or Perform Mandatory Duties and Failure to Supervise; (4) Childhood Sexual Assault; (5) Sexual Battery; (6) Intentional Infliction of Emotional Distress; (7) Violation of the Gender Violence Statute; (8) Childhood Sexual Assault; (9) Sexual Battery; (10) Intentional Infliction of Emotional Distress; (11) Violation of the Gender Violence Statute; (12) Childhood Sexual Assault; and (13) Cyberbullying.

On July 31, 2026, default was entered against Cross-Defendant Davin Sutherland ("Sutherland") on the cross-complaint filed by the District.

On August 7, 2026, Sutherland filed the instant motion.

FACTUAL BACKGROUND

Plaintiff alleges that she attended El Segundo High School, in the District, between September 2013 and June 2017. (Fourth AC, P. 2.)

Plaintiff alleges that beginning in March 2015, fellow students began cyberbullying, sexually assaulting and harassing, physically threatening, insulting, defaming, and terrorizing Plaintiff. (Fourth AC, P. 16.)

Plaintiff alleges that the students' actions were triggered by messages and posts on an app called "Burnbook". (Fourth AC, P. 17.)

Plaintiff alleges that the hateful messages posted on Burnbook concerning Plaintiff caused her emotional, mental, and physical harm and distress. (Fourth AC, P. 17.)

Plaintiff alleges that the names of the individuals who posted the comments on Burnbook could only be requested and obtained through the District. (Fourth AC, P. 23.)

Plaintiff alleges that the District refused to contact Burnbook to obtain the identifying information of those who had posted the harmful comments, and thus Plaintiff was unable to take action to stop the postings and the assaults against Plaintiff. (Fourth AC, P. 25.)

Plaintiff alleges that both Defendants Sutherland and Kapoor sexually assaulted Plaintiff. (Fourth AC, P. 61.)

LEGAL STANDARD

Under Code of Civil Procedure Section 473(d), "The court may . . . on motion of either party after notice to the other party, set aside any void judgment or order."

Lack of personal jurisdiction renders a default judgment void, so that it may be vacated at any time. (Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1249.)

The law favors judgments on the merits. Thus, on a motion for relief from default, "doubts must be resolved in favor of relief, with an order denying relief scrutinized [on appeal] more carefully than an order granting it." (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 134.)

"'[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.] Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. [Citation.]' [Citation.] Under section 473, subdivision (d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service." (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.)

Code of Civil Procedure Section 473.5 also provides that, "[w]hen service of a summons has not resulted in actual notice to a party in time to defend the action and a default . . . 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 . . . and for leave to defend the action."

The notice must be served and filed "within a reasonable time, but in no event exceeding . . . 180 days after service on him or her of a written notice that the default . . . has been entered." (Code Civ. Proc. Section 473.5(a).)

Upon a finding by the court that "the motion was made within the period permitted by subdivision (a) 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 . . . on whatever terms as may be just and allow the party to defend the action." (Code Civ. Proc. Section 473.5(c).)

"Actual notice" under this statute means "genuine knowledge of the party litigant," and not "constructive notice" or "imputed notice." (Rosenthal v. Garner (1983), 142 Cal. App. 3d 891, 895.)

DISCUSSION

Moving Party's Argument

Sutherland seeks an order vacating the entry of default against him on the District's cross-complaint on the grounds that the summons and cross-complaint were not served in compliance with the requirements of Code of Civil Procedure Section 415.50.

Sutherland argues that the District's attempt to serve him by publication failed because the District did not use reasonable diligence to locate Sutherland at his proper address and submitted a false declaration in support of its application for publication, the District's summons and published summons used incorrect names to identify Sutherland, and Sutherland never lived at the address or in the county where publication was made.

Merits of the Motion

Sutherland moves under Code of Civil Procedure Section 473(d) to vacate the default entered against him on the District's cross-complaint because there was no valid service of process and thus the court lacks personal jurisdiction over Sutherland.

Sutherland argues that the District's attempt to serve him by publication was insufficient because the District failed to exercise reasonable diligence to locate Sutherland at his proper address and submitted a false declaration stating that Sutherland evaded service or was unavailable to be served at his residence.

Sutherland argues that the summons published by the District used an incorrect spelling of Sutherland's name, depriving Sutherland of fair notice.

Additionally, Sutherland argues that he never resided in the county where publication was made and thus the publication was not most likely to give Sutherland actual notice of the District's cross-complaint.

Code of Civil Procedure Section 415.50(a) provides: "A summons may be served by publication if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in another manner specified in this article..."

"The term 'reasonable diligence' as used to justify service by publication 'denotes a thorough, systematic investigation and inquiry conducted in good faith....' [Citation.] Where the party conducting the investigation ignores the most likely means of finding the defendant, the service is invalid even if the affidavit of diligence is sufficient." (David B. v. Superior Court (1994) 21 Cal.App.4th 1010, 1016.)

Here, the District's Proof of Service of the summons and cross-complaint refers to "Donald Southerland," and lists the address of 63 Covered Bridge Road, Carmichael, California (the "Carmichael Address"). (Einwechter Decl., Exh. E.)

The District's Application for Publication states that "Cross-Defendant Davin Southerland has evaded service and/or is unavailable to be served at his residence." (Einwechter Decl., Exh. B, p. 2.)

The attached Declaration of Due Diligence indicates that service attempts were made at the Carmichael Address. (Einwechter Decl., Exh. B, p. 3.)

The District's Proof of Publication refers to Sutherland as "David Southerland." (Einwechter Decl., Exh. D.)

Sutherland declares that he has never been served with the summons, complaint, or cross-complaint in this action and has never resided in Carmichael, California or in Sacramento County, California. (Sutherland Decl., P.P. 2-3.)

Sutherland declares that he has never lived at 63 Covered Bridge Road in Carmichael, California, has never evaded service, and was unaware that a process server visited the address in Carmichael, California in January 2026. (Sutherland Decl., P.P. 3, 5.)

Sutherland declares that he is currently on active duty in the U.S. Army and is stationed at Joint Base Lewis-McChord in Washington and has been on active duty continuously since 2021. (Sutherland Decl., P. 4.)

Further, Sutherland's counsel declares that the declaration accompanying the District's Application for Publication is "false in every respect," because Sutherland "never evaded service, was completely unaware of the action in May 2016, and no attempt to serve at his true residence was ever made, because Mr. Sutherland resides at Joint Base Lewis-McChord ("JBLM"), Washington." (Einwechter Decl., P. 4.)

The court finds that Sutherland has established that the District did not exercise reasonable diligence prior to obtaining service via publication, and the District's attempts to serve Sutherland repeatedly referred to Sutherland by incorrect names, such that Sutherland did not have actual notice of the District's cross-complaint.

Therefore, the court concludes that the default entered against Sutherland on the District's cross-complaint is void due to improper service.

Accordingly, Sutherland's Motion to Vacate Default is GRANTED.

CONCLUSION

Based on the foregoing, Sutherland's Motion to Vacate Default is GRANTED.

Moving party is ordered to give notice of ruling.

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Motion to Dismiss

Moving Party: Defendant Davin Sutherland, erroneously sued as Davin Southerland

Responding Party: None

RULING

The court considered the moving papers.

Moving Defendant's Motion to Dismiss is GRANTED.

PROCEDURAL BACKGROUND

On December 30, 2022, Plaintiff Cecelia Stewart ("Plaintiff") filed a complaint against Defendants El Segundo Unified School District (the "District"), Davin Sutherland (erroneously sued as "Davin Southerland"), Manav Kapoor, and DOES 1 through 200, inclusive (collectively, "Defendants"), alleging fifteen causes of action for: (1) Negligence; (2) Negligent Hiring, Training, Supervision, and Retention; (3) Failure to Discharge or Perform Mandatory Duties and Failure to Supervise per Education Code Sections 44807 and 5530; (4) Negligent Infliction of Emotional Distress; (5) Violation of Mandatory Duty; (6) Childhood Sexual Assault; (7) Sexual Battery; (8) Intentional Infliction of Emotional Distress; (9) Violation of the Gender Violence Statute; (10) Childhood Sexual Assault; (11) Sexual Battery; (12) Intentional Infliction of Emotional Distress; (13) Violation of the Gender Violence Statute; (14) Childhood Sexual Assault; and (15) Cyberbullying.

On August 7, 2023, Plaintiff filed a first amended complaint against Defendants, alleging the same fifteen causes of action.

On May 31, 2024, Plaintiff filed a second amended complaint against Defendants, alleging the same fifteen causes of action.

On September 30, 2024, Plaintiff filed a third amended complaint against Defendants, alleging thirteen causes of action.

On October 2, 2024, the District filed a cross-complaint against Cross-Defendants Davin Sutherland (erroneously sued as "Davin Southerland"), Manav Kapoor, and ROES 1 through 25, inclusive, alleging two causes of action for: (1) Indemnity; and (2) Contribution.

On July 18, 2025, Plaintiff filed a fourth amended complaint ("Fourth AC") against Defendants, alleging thirteen causes of action for: (1) Negligence; (2) Negligent Hiring, Supervision, Training, and Retention; (3) Failure to Discharge or Perform Mandatory Duties and Failure to Supervise; (4) Childhood Sexual Assault; (5) Sexual Battery; (6) Intentional Infliction of Emotional Distress; (7) Violation of the Gender Violence Statute; (8) Childhood Sexual Assault; (9) Sexual Battery; (10) Intentional Infliction of Emotional Distress; (11) Violation of the Gender Violence Statute; (12) Childhood Sexual Assault; and (13) Cyberbullying.

On August 5, 2026, Defendant Davin Sutherland ("Moving Defendant") filed the instant motion.

FACTUAL BACKGROUND

Plaintiff alleges that she attended El Segundo High School, in the District, between September 2013 and June 2017. (Fourth AC, P. 2.)

Plaintiff alleges that beginning in March 2015, fellow students began cyberbullying, sexually assaulting and harassing, physically threatening, insulting, defaming, and terrorizing Plaintiff. (Fourth AC, P. 16.)

Plaintiff alleges that the students' actions were triggered by messages and posts on an app called "Burnbook". (Fourth AC, P. 17.)

Plaintiff alleges that the hateful messages posted on Burnbook concerning Plaintiff caused her emotional, mental, and physical harm and distress. (Fourth AC, P. 17.)

Plaintiff alleges that the names of the individuals who posted the comments on Burnbook could only be requested and obtained through the District. (Fourth AC, P. 23.)

Plaintiff alleges that the District refused to contact Burnbook to obtain the identifying information of those who had posted the harmful comments, and thus Plaintiff was unable to take action to stop the postings and the assaults against Plaintiff. (Fourth AC, P. 25.)

Plaintiff alleges that both Defendants Sutherland and Kapoor sexually assaulted Plaintiff. (Fourth AC, P. 61.)

LEGAL STANDARD

Code of Civil Procedure Section 583.210(a) provides: "The summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. For the purposes of this subdivision, an action is commenced at the time the complaint is filed."

A court must dismiss the action if service of the summons and complaint is not effectuated within the statutory three-year period. (Code Civ. Proc. Section 583.250(b).)

These service requirements "are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute." (Code Civ. Proc. Section 583.250(b).)

The time to make service is tolled when "[t]he defendant was not amenable to the process of the court[,]" "[t]he prosecution of the action or proceedings in the action was stayed and the stay affected service[,]" "validity of service was the subject of litigation by the parties[,]" or "[s]ervice, for any other reason, was impossible, impracticable, or futile due to causes beyond the plaintiff's control." (Code Civ. Proc. Section 583.240.)

"Failure to discover relevant facts or evidence is not a cause beyond the plaintiff's control for the purpose of this subdivision." (Code Civ. Proc. Section 583.240(d).)

These exceptions are "construed strictly against the plaintiff." (Shipley v. Sugita, 50 Cal. App. 4th 320, 326 (1996).)

Additionally, "[t]he time within which service must be made pursuant to this article does not apply if the defendant enters into a stipulation in writing or does another act that constitutes a general appearance in the action." (Code Civ. Proc. Section 583.220.)

DISCUSSION

Moving Party's Argument

Moving Defendant argues that Plaintiff's fourth amended complaint must be dismissed pursuant to Code of Civil Procedure Section 583.250 because the summons and complaint were not served within the time period required by Section 583.210.

Moving Defendant states that Plaintiff filed the original complaint on December 29, 2022, and filed the Fourth Amended Complaint on July 18, 2025, yet proper service was not made on Moving Defendant by December 29, 2025.

Moving Defendant notes that an order for service by publication was filed on May 11, 2026 and a proof of service by publication was filed on July 23, 2026, which was untimely.

Further, Moving Defendant argues that the attempted service was defective because Moving Defendant has never resided in the county where publication was made and the published summons does not identify Moving Defendant by his correct name.

Merits of the Motion

Moving Defendant argues that Plaintiff failed to timely serve the summons and complaint pursuant to Code of Civil Procedure Section 583.210(a), and thus dismissal of Plaintiff's action against Moving Defendant is mandatory pursuant to Section 583.250.

Code of Civil Procedure Section 583.210(a) provides that "[t]he summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision, an action is commenced at the time the complaint is filed."

Plaintiff filed her original complaint on December 30, 2022, a first amended complaint on August 7, 2023, a second amended complaint on May 31, 2024, a third amended complaint on September 30, 2024, and a fourth amended complaint on July 18, 2025.

Moving Defendant has been a named defendant since Plaintiff filed her original complaint, although he was erroneously sued as Davin Southerland.

Moving Defendant correctly notes that he has not made a general appearance in this action, and the filing the instant motion does not constitute a general appearance, pursuant to Code of Civil Procedure Section 583.220(b).

Pursuant to Code of Civil Procedure Section 583.210(a), Plaintiff was required to serve the summons and complaint upon Moving Defendant by December 30, 2025, subject to exception.

However, Moving Defendant argues that no exception applies, because Moving Defendant has been "amenable to service and did not secret himself or evade service in any manner during the statutory period," and "[s]ervice [upon Moving Defendant] was not impossible, impractical, or futile due to causes beyond the plaintiff's control." (Einwechter Decl., P. 6.)

Moving Defendant's counsel correctly notes that an order for service by publication was filed on May 11, 2026, and a proof of service by publication was filed on July 23, 2026.

The proof of publication states that the summons was published in the County of Sacramento and is addressed to "David Southerland," and the order for publication states that service of the summons, cross-complaint, and fourth amended complaint on "Davin Southerland" is to be made by publication in Carmichael, California.

However, the court notes that both documents were filed by the District as Cross-Complainant.

Further, even if filed by Plaintiff, the service would far exceed the three-year deadline established by Code of Civil Procedure Section 583.210(a).)

Further, Moving Defendant declares that he "became aware of this lawsuit after a copy of a summons, complaint, and cross-complaint were mailed to a relative's address in Carmichael, California, but [Moving Defendant] was not sure [Moving Defendant] was the person named as a defendant in this case." (Sutherland Decl., P. 3.)

Moving Defendant declares that he does not reside and has never resided in Carmichael, California or in Sacramento County and is currently on active duty in the U.S. Army, stationed at Joint Base Lewis-McChord in Washington. (Sutherland Decl., P.P. 4-5.)

Thus, Moving Defendant's counsel declares that service by publication was invalid because Moving Defendant does not and has never resided in the county where publication was made and the published summons incorrectly identified Moving Defendant by referring to him by an incorrect name. (Einwechter Decl., P. 8.)

The court finds that Moving Defendant has established that proper service of the summons and complaint was not made upon Moving Defendant within the three-year timeline as required by Code of Civil Procedure Section 583.210(a), and Moving Defendant has further shown that no exception applies.

Therefore, the court concludes that dismissal of Plaintiff's fourth amended complaint against Moving Defendant is mandatory pursuant to Code of Civil Procedure Section 583.250.

Accordingly, Moving Defendant's Motion to Dismiss is GRANTED.

CONCLUSION

Based on the foregoing, Moving Defendant's Motion to Dismiss is GRANTED.

Moving party is ordered to give notice of ruling.