Judge: Armen Tamzarian, Case: BC710454, Date: 2024-03-26 Tentative Ruling

Case Number: BC710454    Hearing Date: March 26, 2024    Dept: 52

Plaintiff Frederick Wayne Smith’s Motion to Set Aside Judgment

Plaintiff Frederick Wayne Smith moves to set aside the judgment in this action.  On September 25, 2018, the court dismissed this action because plaintiff failed to appear for hearings and did not file proof of service of summons.  Plaintiff’s motion asserts “extrinsic fraud … prevented [the] cause from having been fully considered on its merits.”  (Motion, pp. 1-2.)    

Plaintiff has not shown any extrinsic fraud.  “Extrinsic fraud occurs when a party is deprived of the opportunity to present a claim or defense to the court as a result of being kept in ignorance or in some other manner being fraudulently prevented by the opposing party from fully participating in the proceeding.”  (County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1228–1229.) 

Plaintiff’s motion refers to various potential frauds, such as: “The fact of pregnancy existing at the time of the marriage, together with the concealment of that fact from the innocent spouse, amounts to the perpetration of a fraud.”  (Motion, p. 2.)  Plaintiff further asserts the “marital settlement agreement” or judgment in the dissolution proceeding between him and defendant “should [be] set aside on grounds of extrinsic fraud; collusion; perjury…”  (Smith Decl., ¶ 3.)  That would not justify vacating the dismissal in this action.  Those purported frauds occurred long before plaintiff brought this action.  They did not prevent him from participating in this action.

Plaintiff also does not meet another necessary element for equitable relief from the dismissal.  A party “seeking equitable relief on the grounds of extrinsic fraud or mistake must show… diligence in seeking to set aside the default judgment [or dismissal] once discovered.”  (Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750.)  The court dismissed this action on September 25, 2018.  Plaintiff filed this motion over five years later.  Plaintiff has not shown any diligence in seeking to set aside the dismissal. 

The papers describe only one recent event.  Plaintiff asserts that on May 20, 2023, he learned new facts about what happened to his property and that “Mike Terry” or “M. Terry” committed the crime for which plaintiff is incarcerated.  (Motion p. 2; Smith Decl., ¶ 4.e.)  Those may be injustices, but they are not relevant to vacating the judgment of dismissal in this civil action against Irma Lee Smith.  Those circumstances did not prevent plaintiff from participating in this proceeding.  That plaintiff did not know these things earlier does not justify his lack of diligence in seeking to set aside the judgment.

Plaintiff Frederick Wayne Smith’s motion to set aside judgment is denied.