Judge: Layne H. Melzer, Case: 2013-00686899, Date: 2022-10-13 Tentative Ruling
DEF Todd A Parker
Motion to Tax Costs
The Motion to Tax Costs brought by Judgment Debtor Todd Allen Parker, individually and dba Parker Rebar is DENIED.
While framed as a motion to tax costs, in actuality the instant motion seeks to set aside the default Judgment entered on August 13, 2014. As the Notice of Motion includes a request to vacate the default (Notice: 2:3-6), the Court interprets the motion as a motion to set aside default judgment.
Initially, in seeking to set the judgment aside, Defendant cites to C.C.P. §473.5; however, as Judgment was entered on August 13, 2014, more than 2-years prior to the instant motion, relief pursuant to C.C.P. §473.5 is unavailable. (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180).
Pursuant to C.C.P. §473(d), however, “[t]he court may…on motion of either party after notice to the other party, set aside any void judgment or order.” Additionally, “a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544). “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.” (Id.). Per Falahati v. Kondo (2005) 127 Cal.App.4th 823, “[a] void judgment can be attacked at any time by a motion under Code of Civil Procedure section 473, subdivision (d) or by a collateral action.” (Id. at 830).
Additionally, “[a] trial court may…vacate a default on equitable grounds even if statutory relief is unavailable.” (Luxury Asset Lending, LLC v. Philadelphia Television Network, Inc. (2020) 56 Cal.App.5th 894, 910). “The moving party carries the burden of proving that he or she is entitled to equitable relief.” (Id.). “Equitable relief may be based on ‘extrinsic fraud, which ‘usually arises when a party is denied a fair adversary hearing because he has been ‘deliberately kept in ignorance of the action or proceeding, or in some other way fraudulently prevented from presenting his claim or defense.’” (Id. at 910-911). “It occurs when ‘the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff.’” (Id. at 911). “In those situations, there has not been ‘a real contest in the trial or hearing of the case,’ and the judgment may be set aside to open the case for a fair hearing.” (Id. at 911).
“To set aside a judgment based on extrinsic fraud or extrinsic mistake, the moving party must satisfy three elements: ‘First, the defaulted party must demonstrate that it has a meritorious case. Secondly, the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Lastly, the moving party must demonstrate diligence in seeking to set aside the default once it had been discovered.” (Id. at 911).
Here, Plaintiff correctly asserts Defendant has not established a meritorious defense to this action; however, despite the authority cited above, binding authority from the United States Supreme Court demonstrates that the same cannot be required, where a lack of service is shown: As explained by the United States Supreme Court in Peralta v. Heights Medical Center, Inc. (1988) 485 U.S. 80, “[w]here a person has been deprived of property in a manner contrary to the most basic tenets of due process, ‘it is no answer to say that in his particular case due process of law would have led to the same result because he had no adequate defense upon the merits.” (Id. at 86-87). “[O]nly wip[ing] the slate clean…would have restored the petitioner to the position he would have occupied had due process of law been accorded to him in the first place.” (Id. at 87).
The Court in Peralta found the trial court had improperly denied a motion to vacate a judgment entered without proper notice, for failure to show a meritorious defense. (Id. at 86-87).
Additionally, “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 was void for lack of due process.” (County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1228). “When a judgment or order is obtained based on a false return of service, the court has the inherent power to set it aside.” (Id. at 1229). Indeed, where a Defendant established “through extrinsic evidence that the default judgment was void for want of personal jurisdiction over him, it had the same effect as if it had been void on its face and the court had the inherent power to set it aside even though any statutory period has run.” (Id. at 1231).
Based on all of the above, it is clear that, where a Defendant was not served a summons and complaint, a resulting default judgment must be set aside, either pursuant to C.C.P. §473(d) or via the Court’s equitable powers.
Nonetheless, the Court finds Defendant failed to demonstrate a lack of service: Here, a Proof of Service filed on November 15, 2013, indicates Defendant Todd Allen Parker was personally served on November 14, 2013, at 3302 Quail Run Road, Los Alamitos, CA 90720. (ROA No. 9). The Proof of Service is executed under penalty of perjury by a registered California process server. (Id.).
Pursuant to Evidence Code §647, “[t]he return of a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.”
“Because of the statutory presumption, defendant was thus required to produce evidence that he was not served.” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390).
Here, Defendant declares: “Having never been personally served with a summons and complaint in this matter, I was mortified to read that an astronomical judgment had been entered against me fraudulently, and the utter absence of due process of law, in the current sum of $46,118.41.” (¶3 of Parker Declaration). “Given that I have never been served with this lawsuit, have never received any actual notice or any paperwork at all, and denied the opportunity or courtesy of actually knowing that a legal action has ever been filed against me in order to respond and properly litigate this lawsuit, I’m requesting this court set aside and vacate the default judgment entered against me personal, as well as my company.” (¶4 of Parker Declaration).
Of note, “a declaration of non-service if credited by the trial court can rebut the presumption of proper service,” however, a court may decline to credit a declaration as unpersuasive. (Fernandes v. Singh (2017) 16 Cal.App.5th 932, 941, fn. 6). “It is the province of the trial court to determine the credibility of the declarants and to weigh the evidence.” (Falahati v. Kondo (2005) 127 Cal.App.4th 823, 828). Additionally, the Court “[is] not required to accept this self-serving evidence contradicting the process server’s declaration.” (Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 751).
Here, the Declaration offered by Defendant is not persuasive, as Defendant concedes having received the “Memorandum of Costs After Judgment,” which was served at the same address used for personal service in 2013. (¶2 of Parker Declaration). The Memorandum of Costs After Judgment was served by mail on July 6, 2022, to the same address wherein personal service was previously declared to have occurred: 3302 Quail Run Rd., Los Alamitos, CA 90720. (ROA No. 46). Thus, Defendant concedes that the correct address for service was used.
Additionally, a review of the record for this action indicates that multiple documents were served by mail on the above address, in 2014. (ROA Nos. 15, 16, 25 and 31). Given the same, Defendant’s assertions he only recently discovered this action is unpersuasive. Similarly, this calls into question Defendant’s statement that he did not receive the summons and complaint.
Based on the above, the Court finds that Defendant has insufficiently rebutted the presumption of service and the motion to set aside default judgment is DENIED. Additionally, as the motion does not include any grounds upon which to tax or strike costs, beyond the allegedly void judgment, the portion of the motion which seeks to tax costs is likewise DENIED.
Moreover, the Memorandum of Costs does not, in actuality, include any post judgment costs which are subject to being taxed or stricken. (ROA No. 46). Instead, the Memorandum includes the original Judgment amount as well as accrued interest in the amount of $36,412.29. (¶3 of Memorandum [ROA No. 46]). The referenced interest does not constitute an item of cost. (See C.C.P. §1033.5 and C.C.P. §685.070).
Additionally, while Defendant’s Reply asserts the Memorandum of Costs was untimely filed, Defendant mistakenly cites only CRC 3.1700, which governs prejudgment costs. (Reply: 2:23-3:10).