Judge: Elaine W. Mandel, Case: SC127941, Date: 2023-01-31 Tentative Ruling

Case Number: SC127941    Hearing Date: January 31, 2023    Dept: P

Tentative Ruling

Parsa et al. v. Zoopri Inc. et al., Case No. SC127941

Hearing Date January 31, 2023

Defendant Abdali’s Motion to Set Aside Default Judgment

Default judgment was entered on February 21, 2018. Defendant Abdali states he was never served with the complaint and summons, and default judgment should be set aside on equitable grounds due to fraud and/or extrinsic mistake.

Relief from under Cal. Code of Civ. Proc. §473 becomes unavailable when more than six months pass after the entry of default; relief under §473.5 becomes unavailable the earlier of two years after the entry of default judgment or 180 days after written notice that default judgment has been entered. Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 735 fn. 3. A court may vacate default on equitable grounds, such as extrinsic fraud or extrinsic mistake, even if statutory relief is unavailable. Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981. Extrinsic fraud occurs when a party is deprived of the opportunity to present their claim, such as where plaintiff fails to give notice of the action and defendant never has knowledge of the suit. Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1300.

Extrinsic mistake is present when circumstances extrinsic to the litigation unfairly cost the moving party a hearing on the merits. Rappleyea, supra, 8 Cal. 4th at 981. A default must be set aside for extrinsic mistake if the defaulted party demonstrates it has a meritorious case, articulates a satisfactory excuse for not presenting a defense to the original action and demonstrates diligence in seeking to set aside the default. Id. at 982-984.

Statutory relief is unavailable, since plaintiff obtained default judgment in 2018. Therefore, Abdali must show he is entitled to equitable relief under Rappleyea.

Abdali argues extrinsic fraud because he never received notice of the action. He states the proof of service is false, and he was never personally served with the summons or complaint. Abdali decl. ¶¶10, 11. He states in 2017, when he was purportedly served, he did not reside at the address identified in the proof of service, having moved out in mid-2010. Id. ¶¶13, 14. He states he did not become aware of the case until mid-November 2022, when his counsel searched the court’s docket, and he was never given notice of the entry of default.

Parsa points out that the motion is untimely under §473.5. He argues Abdali provided insufficient evidence the complaint and summons were not properly served. Abdali’s motion is untimely under §473.5, but that is immaterial to Abdali’s request for equitable relief on the grounds of extrinsic fraud and mistake. As to the Rapplyea factors, Abdali’s motion provides adequate evidence. Abdali presents a meritorious defense, providing a proposed answer and stating under oath he did not sign the promissory notes underlying the complaint. Abdali decl. ¶¶24-31. Second, he provides a satisfactory excuse for not defending the action -- that he was never served. Abdali decl. ¶¶10-22. Third, he promptly moved to set aside the default judgment after learning of the lawsuit. Abdali decl. ¶25.

Parsa does not present a new declaration from his process server, Richard Horner, so there is no direct evidence contradicting Abdali’s claim that he never received notice. Additionally, Parsa’s argument that the address where the complaint was served was associated with Abdali’s company Zoopri, Inc. is unavailing. The complaint was served in 2017, while Zoopri was listed as inactive on July 1, 2011. Karchemsky decl., Exhibit A. The association of the Midvale address with Zoopri does not prove Abdali received notice of the lawsuit.

Abdali has fulfilled the Rappleyea factors and shown extrinsic fraud and/or mistake. He is entitled to equitable relief, and the default judgment will be set aside. GRANTED. The answer is to be filed within 15 days.