Judge Mark A. Young, Case Number: 19SMCV02202, Date: 2024-08-09 Tentative Ruling

Judge: Mark A. Young, Case: 19SMCV02202, Date: 2024-08-09 Tentative Ruling

Case Number: 19SMCV02202 Hearing Date: August 9, 2024 Dept: M

CASE NAME: Green & Marker v. Bagga, et al.

CASE NO.: 19SMCV02202

MOTION: Motion to set aside the default and default judgment

HEARING DATE: August 9, 2024

Legal Standard

Relief under Code of Civil Procedure section 473(b) is either discretionary or mandatory. A motion for mandatory relief must be made no more than six months after entry of judgment and be accompanied by an attorney’s sworn affidavit attesting to the attorney’s “mistake, inadvertence, surprise or neglect.” (CCP § 473(b).) The attorney affidavit of fault must contain a “straight forward admission of fault.” (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) But it need not contain an explanation of the reasons for the attorney’s mistake, inadvertence surprise or neglect. (Martin Potts & Assocs., Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438-441.) Relief must be granted “unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.” (Ibid.) If mandatory relief is granted, the court must “direct the attorney to pay reasonable compensatory legal fees and costs” to the opposing counsel or parties. (CCP § 473(b).)

Where a party cannot obtain an attorney affidavit of fault, the party may seek discretionary relief under section 473(b) due to “mistake, inadvertence, surprise, or excusable neglect.” (CCP § 473(b).) A motion for discretionary relief must be made “within a reasonable time but in no instance exceeding six months after the judgment, dismissal, order, or proceeding was taken.” (Id.) If discretionary relief is granted, the court may in its discretion order the moving party to pay the costs, including attorney fees, incurred in obtaining the default. (Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816, 823; Vanderkous v. Conley (2010) 188 Cal.App.4th 111, 118-119.) If the motion for discretionary relief is granted, the court may order the offending attorney to pay monetary sanctions up to $1,000 to opposing parties, or up to $1,000 to the State Bar Client Security Fund, or “[g]rant other relief as is appropriate.” (CCP § 473(c)(1)(A), (B), (C).)

A motion for relief under section 473(b) “shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted. . .” (CCP § 473(b).) However, this requirement is not jurisdictional; substantial compliance may suffice. (Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 403 [finding substantial compliance where counsel offered proposed answer at motion hearing rather than serving it with moving papers].)

Section 473(d) provides that “[t]he court may . . . on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc., § 473(d).) Code of Civil Procedure section 473.5 states: “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.”

Analysis

Defendants, Surjit Bagga and Randy Bagga move to set aside the default and default judgment against them. The Court entered default against Defendants on April 20, 2021. The Court entered a default judgment against Defendants on April 25, 2021.

Defendants did not diligently seek relief, which precludes most forms of relief. Defendants filed this motion on October 29, 2021, beyond the 6-month outer limit for most relief. The record shows that Defendants had actual notice of this lawsuit as of March 17, 2021, when they requested fee waivers and an extension of time to respond to the suit. Therefore, relief under sections 473(b) and 473.5 is unavailable. Defendants do not brief the issues of extrinsic fraud or mistake. The Court finds no grounds for equitable relief. As noted, Defendants did not diligently seek relief once the default or default judgment was discovered. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 982 [once the purported extrinsic fraud or mistake is discovered, a party is expected to proceed diligently to seek relief]; Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 315 [“Extrinsic fraud occurs when a party is deprived of his opportunity to present his claim or defense to the court, where he was kept in ignorance or in some other manner fraudulently prevented from fully participating in the proceeding”, emphasis added].)

The Court finds that the only relief potentially available to Defendants at this juncture may be found under section 473(d). (See Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42 [relief pursuant to section 473(d) may be made at any time].) “‘[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction.¿ [Citation.]¿ Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.¿ [Citation.]’”¿ (Ellard v. Conway¿(2001) 94 Cal.App.4th 540, 544.) ¿ “[A] trial court may grant a motion to set aside [a] judgment as void only if the judgment is void on its face.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441.) “A judgment is void on the face of the record when it appears on the face of the record that the trial court had no power to enter the default or the default judgment.” (Yeung v. Soos (2004) 119 Cal.App.4th 576, 582.) If the judgment is valid on its face, but deemed void after considering evidence beyond the judgment, the motion must be brought within the same time as a motion brought under section 473.5. (Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1122-26.)

If other methods of service fail, a party may serve another party by publishing the summons in a newspaper. (CCP § 415.50.) Publication provides the weakest form of notice and may not be used if service by personal delivery, substituted delivery, mail delivery, or some other more effective means is possible. (Quaranta v. Merlini, (1987) 192 Cal. App. 3d 22.) The party wishing to serve by publication must, by affidavit, satisfy the court in which the action is pending that the person to be served cannot with reasonable diligence be served in another manner specified in Article 3, pertaining to manner of service of summons. (CCP §§ 415.10-415.50.) “The term ‘reasonable diligence’ takes its meaning from the former law: it denotes a thorough, systematic investigation and inquiry conducted in good faith by the party or his agent or attorney [Citations.] A number of honest attempts to learn defendant's whereabouts or his address by inquiry of relatives, friends, and acquaintances, or of his employer, and by investigation of appropriate city and telephone directories, the voters' register, and the real and personal property index in the assessor's office, near the defendant's last known location, are generally sufficient. These are likely sources of information, and consequently must be searched before resorting to service by publication.” (See Cal. Judicial Council Comment, West Ann.Code Civ.Proc. (1973 ed.) § 415.50, pp. 561–563.) The showing of diligence in a given case must rest on its own facts and “[n]o single formula nor mode of search can be said to constitute due diligence in every case.” (Donel, Inc. v. Badalian (1978) 87 Cal.App.3d 327, 333, 150 Cal.Rptr. 855.)

On the face of the record, the service of the Summons and Complaint was effectuated by publication pursuant to the Court’s order. The application for publication was supported by a declaration from Richard A. Marker, showing Plaintiff’s reasonable attempts to serve Defendants with a copy of the summons and complaint. He explained that they attempted to reach out and locate Defendants, including emailing and calling Defendants and their relatives. (Maker Decl., ¶¶ 8-9, 14-17.) As Defendants are Canadian, they may only be served via the Hague Convention. (See Kott v. Superior Court (1996) 45 Cal.App.4th 1126, 1135-36 [service via publication does not implicate the Hague Service Convention].) Plaintiff attempted Hague-compliant service on Defendants through Canada’s central authority. (Id., ¶¶ 10-12.) However, the sheriff was unable to serve the documents. (¶ 13.) Thus, Defendants concluded that the address for proper service was unknown, and Defendants could not reasonably be located or served by any method of service other than by publication. (¶ 18.) The local paper, Richmond News, was adjudicated to be a newspaper of general circulation. (¶ 20.) The notice apparently had its intended effect, as Defendants received actual notice of this lawsuit in time to defend. Otherwise, Defendants cite extrinsic evidence that Marker used an “incorrect” address for the Hague service. Such an argument may provide a basis to quash but would not affect the face of the valid judgment.

Accordingly, the motion is DENIED.