Judge: Frank M. Tavelman, Case: EC064706, Date: 2024-11-08 Tentative Ruling

Case Number: EC064706    Hearing Date: November 8, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO SET ASIDE/VACATE

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

On June 2, 2016, the Court entered Default Judgment as against Ka San (Defendant) and Golden Supermarket, Inc in favor of International Collection Corp. (Plaintiff). The initial judgment was for a total of $51,470.16, although Plaintiff’s most recent statement of its costs after judgment shows interest has accumulated in the amount of $ 39,131.39.

Before the Court is motion by Defendant to vacate the judgment against him on various grounds. Defendant maintains that he was never served and never received actual notice of this action until recently. Defendant asks the Court to vacate the judgment and allow him to file a responsive pleading.

The Court notes that no opposition was received.   A failure to oppose a motion may be deemed a consent to the granting of the motion.  Failure to file an opposition to the motion indicates the other parties' acquiescence that the motion is meritorious. CRC Rule 8.54(c)

ANALYSIS: 

I.                    LEGAL STANDARD 

A defendant against whom a default judgment has been entered has three basis for relief: first, the party can obtain relief under C.C.P. §473 and 473.5; second, the party can show that extrinsic fraud or mistake exists; and third, the party can show that the default judgment was facially void.  (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 181.)

C.C.P. § 473(b)

Under C.C.P. § 473(b), an application for relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (C.C.P. § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

C.C.P. § 473.5

CCP § 473.5(a) provides that a party who has not received timely actual notice may file a notice of motion to set aside the default judgment: “When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment 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 or default judgment and for leave to defend the action.”

A motion seeking relief under CCP § 473.5 must be served and filed within a reasonable time but in no event later than two years after the entry of default judgment or 180 days after service of written notice that default or default judgment has been entered, whichever is earlier. (C.C.P. § 473.5(c).)

C.C.P. § 473(d)

Where a party moves under C.C.P. 473(d) to set aside a judgment that, though valid on its face, is void for lack of proper service, the courts have adopted by analogy the statutory period for relief from a default judgment provided by C.C.P. § 473.5, that is, 2 years after entry of default. (Rogers v. Silverman (1989) 216 Cal. App. 3d 1114, 1120-1124; Schenkel v. Resnik (1994) 27 Cal. App. 4th Supp. 1, 3-4; Gibble v. Car-Lene Research, Inc. (1998) 67 Cal. App. 4th 295, 301, fn. 3; Trackman v. Kenney (2010) 187 Cal. App. 4th 175, 180.)

Extrinsic Fraud

A trial court has an inherent equity power under which, apart from statutory authority, it may grant relief from a default judgment obtained through extrinsic fraud or mistake. (In re Marriage of Coffin (1976) 63 Cal.App.3d 139, 148-149 [internal quotations and citations omitted].)

“To set aside a judgment based upon extrinsic mistake one must satisfy three elements. First, the defaulted party must demonstrate that it has a meritorious case. Second, the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Last, the moving party must demonstrate diligence in seeking to set aside the default once ... discovered.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 982 [internal quotes and citations omitted].)

II.                 MERITS

The Court begins by noting that Defendant’s request for relief pursuant to C.C.P. § 473(b) is untimely. Motions brought pursuant to this section must be brought within six months of the entry of judgment. Here, judgment was entered on June 2, 2016. Defendant therefore cannot seek relief under either provision of C.C.P. § 473(b). The same can be said of Defendant’s request for relief under C.C.P. §§ 473.5 and 473(d). These statutes require relief be sought within two years of entry of default.

Given the foregoing, Defendant’s sole remaining avenue for relief is to demonstrate that the judgment was obtained through extrinsic fraud. As will be explained below, the Court finds Defendant has adequately demonstrated this to be the case.

To begin, the Court finds Defendant has sufficiently demonstrated the existence of a meritorious case as they have included a proposed Answer as Exhibit D to this motion.

The Court also finds Defendant has demonstrated a satisfactory excuse for not defending the original action. Findings of extrinsic fraud in the context of relief from default do not mirror the stringent requirements of proving common law fraud. Extrinsic fraud is a broad concept that “tend[s] to encompass almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing.” (Marriage of Park (1980) 27 Cal.3d 337, 342; County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1229 [default judgment obtained by false proof of service constitutes extrinsic fraud].)

Here, the proofs of service reflect that the summons and complaint were left with Joan Huang (Huang) on February 6, 2016 at 7:39 a.m. (Exh. A.) In his declaration Defendant explains that he and his wife Huang did live at the address of service, 864 Sierra Madre Blvd. San Marino, CA 91108, at the time of purported service. (San Decl. ¶ 3.) However, Defendant states that he was out of the country at the time that service occurred, as he frequently travels to China for business. (San Decl. ¶ 4.) Defendant maintains that he never received any paperwork related to this litigation, either in person or by mail. (San Decl. ¶¶ 7-8.) Huang, the person purportedly served, also denies having ever received service. Huang states that she never received any documents related to this litigation either in person or through mail. (Huang Decl. ¶¶ 3-4.)

Here, the Court finds that Defendant has demonstrated fact sufficient to establish that Huang never received notice of the pending litigation. Defendant has provided sufficient testimony to rebut the presumption of effective service arising from the process server’s affidavit. (See American Express Centurion Bank v. Zara (2011) 199¿Cal.App.4th 383, 390 [internal citation omitted]; Evid. Code § 647.) The Court notes that because it is the policy of the law to favor a hearing on the merits, very slight evidence is required to justify a trial court’s order setting aside a default. (Ramos v. Homeward Residential, Inc. (2014) 223 Cal.App.4th 1434, 1444.)

Lastly, the Court finds that Defendant has sufficiently demonstrated diligence in seeking to vacate the judgment. Both Defendant and Huang testify that they had no knowledge of this suit until May 2024, when they noticed a debit transaction on their accounts associated with Plaintiff’s levy. (San Decl. ¶ 10, Huang Decl. ¶ 7.) Defendant thereafter retained counsel and filed this motion on September 9, 2024. The Court notes that Defendant provides no explanation for the several month gap between becoming aware of the levy and filing this motion. Regardless, the Court is sensitive to the fact that obtaining legal representation and filing such a motion does take time. While Defendant’s response may not have been as prompt as it could have, the Court does not find this warrants denial of relief.

The Court also notes that it received no opposition.  A failure to oppose a motion may be deemed a consent to the granting of the motion.  Failure to file an opposition to the motion indicates the other parties' acquiescence that the motion is meritorious. CRC Rule 8.54(c).   Given the lack of opposition and what was discussed above the Court finds that the moving party has met its burden to vacate the judgment which was not opposed.

Accordingly, the Motion to Vacate Default Judgment/Set Aside Default is GRANTED.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Ka San’s Motion to Set Aside/Vacate came on regularly for hearing on November 8, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION TO VACATE DEFAULT JUDGMENT/SET ASIDE DEFAULT IS GRANTED.

DEFENDANT IS TO FILE HIS RESPONSIVE PLEADING WITHIN 10 DAYS.

DEFENDANT TO SUBMIT ORDER VACATING ANY GARNISHMENT/EXECUTION ON THE JUDGMENT.

A CASE MANAGEMENT CONFERENCE IS SET FOR FEBRUARY 25, 2025 AT 9:00 AM.

DEFENDANT TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE: November 8, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles