Judge Gary Y. Tanaka, Case 19TRCV01115 2022-09-26 Tentative Ruling

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka Monday, September 26, 2022

Department B Calendar No. 7

Plaintiff filed the Complaint on December 20, 2019. Plaintiff’s First Amended Complaint was filed on February 14, 2020. Plaintiff alleges the following facts. This matter involves a nonjudicial foreclosure proceeding that resulted in a Trustee’s Sale on October 10, 2019, at which the subject property was sold to Federal Home Loan Mortgage Corporation. Plaintiff alleges the following causes of action: (1) Identity Theft; (2) Title Fraud.

Defendant Chad Tao’s default was entered on April 27, 2020. The Court notes that, with the opposition, Plaintiff attached a conformed copy of the entry of default which appears to reflect that the default was entered on February 27, 2020. This document is not reflected in the Court’s records, and, presumably, it must have been stricken since no default could properly have been entered against Chad Tao as to the First Amended Complaint since the FAC had only been filed 13 days earlier. On October 20, 2020, Defendants Clear Recon Corp’s and Federal Home Loan Mortgage Corp.’s Demurrers to Plaintiff’s First Amended Complaint were sustained without leave to amend. Defendant Federal Home Loan Mortgage Corp.’s Motion to Deem Plaintiff a Vexatious Litigant was granted. Defendant Chad Tao’s Motion to Set Aside Entry of Default was denied without prejudice.

Defendant’s request for judicial notice is granted pursuant to Evidence Code sections 452(d) and (h).

CCP § 473(b) states, in relevant part: “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. . . . Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. . . .”

CCP § 473.5(a) states, in relevant part: “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. 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.” CCP § 473.5(b) states: “A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it 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. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.” The phrase “actual notice” means “genuine knowledge of the party litigant” and does not include constructive or imputed notice to the client. Tunis v. Barrow (1986) 184 Cal.App.3d 1069, 1077.

“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.” Code Civ. Proc., § 473(d).

“[E]ven where relief is no longer available under statutory provisions, a trial court generally retains the inherent power to vacate a default judgment or order on equitable grounds where a party establishes that the judgment or order ... resulted from extrinsic fraud or mistake. . . . [T]he party seeking equitable relief on the grounds of extrinsic fraud or mistake must show three elements: (1) a meritorious defense (2) a satisfactory excuse for not presenting a defense in the first place; and (3) diligence in seeking to set aside the [order] once discovered.” Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1025 (internal citations and quotations omitted).

Defendant moves for an order granting relief from the entry of default and default judgment. The motion is brought pursuant to CCP § 473 et seq. on the ground that the default and default judgment were entered due to mistake, inadvertence, surprise, and/or excusable neglect, and under the Court’s inherent equitable power to set aside a judgment on the ground of extrinsic fraud or mistake.

Defendant’s motion to set aside the default judgment is moot because no default judgment has been entered in this action. The Court will proceed to analyze the portion of the motion seeking to set aside the entry of default.

Defendant has set forth facts to support a showing that the entry of default resulted from extrinsic fraud or mistake. Namely, Defendant submits competent evidence demonstrating that Defendant was not actually personally served with the summons and First Amended Complaint as reflected by the proof of service filed by Plaintiff. Instead, the First Amended Complaint was apparently served upon a different individual named Adam Bang. (Decl., Tao, ¶ 3; Decl., Bang, ¶¶ 6-12.) Improper service and/or submitting a false proof of service constitutes the requisite facts of extrinsic fraud or mistake. County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1233.

In opposition, Plaintiff submitted absolutely no facts to demonstrate that, in fact, Defendant was personally served as indicated by the proof of service. Defendant’s evidence submitted with the motion is, therefore, not controverted. Defendant has also set forth facts demonstrating: “(1) a meritorious defense (2) a satisfactory excuse for not presenting a defense in the first place; and (3) diligence in seeking to set aside the [order] once discovered.” Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1025. Defendant has submitted his proposed demurrer to support his defense. Defendant states that he was not aware of the purported service until only one day before the default was entered. Finally, Defendant submits facts of diligence in attempting to set aside the default. (Decl., Tao, ¶¶ 5-19).

Defendant is ordered to file and serve his demurrer and reserve a hearing date for the demurrer within 3 days of this date.