Judge: Mark C. Kim, Case: 19LBCV00655, Date: 2023-05-11 Tentative Ruling
Case Number: 19LBCV00655 Hearing Date: May 11, 2023 Dept: S27
Plaintiff, William Funk, as Trustee
of the Vicki M. Funk Revocable Trust filed this action against Defendant, Alex Miller
for breach of contract, alleging Defendant failed to pay off an outstanding
bank loan in the amount of $201,000 after Vicki Funk passed away. Plaintiff alleges the contract obligating
Defendant to do so is attached as Exhibit A to the complaint, but there are no
exhibits to the complaint. Plaintiff
filed his complaint on 10/08/19.
On 8/06/20, Plaintiff filed proof
of service of the summons and complaint on Defendant. The POS indicates James G. McCone, Plaintiff’s
attorney, served Defendant personally on 3/02/20 at the Long Beach
Courthouse. At Plaintiff’s request, the
Clerk entered Defendant’s default the same day (8/06/20).
On 10/19/20, the Court entered
default judgment in favor of Plaintiff and against Defendant in the principal
amount of $190,175.63, plus prejudgment interest and costs.
a.
Grounds for Relief
Defendant moves to vacate the default
and default judgment entered against him, contending they should be vacated due
to extrinsic fraud and/or mistake.
Defendant contends Plaintiff did not serve him with the summons and
complaint, did not mail a copy of the request for entry of default or default judgment,
and did not give notice multiple times when ordered to do so by the Court. Defendant contends he only recently learned
about the action when he attempted to refinance his property in September of
2022, and his loan broker told him there was a judgment lien filed against the
property.
b. Opposition
Any opposition to the motion was
due on or before 4/28/23. The Court has
not received timely opposition to the motion.
Notably, the motion was originally timely and properly scheduled for
hearing on 4/25/23. However, on
10/28/22, the Court changed the hearing date from 4/25/23 to 5/11/23. The Court gave notice to Plaintiff, and
ordered Plaintiff to give notice to Defendant.
Consistent with the other failures to give notice noted in the moving
papers, there is nothing in the file showing Plaintiff complied with his
obligation to give notice of the continued hearing date.
Because Plaintiff had notice of
both the original hearing date and also the continued hearing date, the Court
finds notice of the relief sought is sufficient, and will not consider any late-filed
opposition.
c. Law
Governing Extrinsic Fraud or Mistake
Equitable relief from a default
judgment can be sought at any time on the ground of extrinsic mistake. (Olivera v. Grace (1942) 19 Cal.2d 570, 576;
Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1300.)
There are three essential
requirements to obtain relief on this ground: (1) a meritorious defense; (2) a
satisfactory excuse for not presenting a defense to the original action; and
(3) diligence in seeking to set aside the default/default judgment once it was
discovered. (Rappleyea v. Campbell
(1994) 8 Cal.4th 975, 982.) The
statutory limits on relief under CCP §§473(b) and 473.5 do not apply, but once
the purported extrinsic fraud or mistake is discovered, a party is expected to
proceed diligently to seek relief. This
requirement is inextricably intertwined with prejudice to the plaintiff. (Id., at pp. 983-984.) There is a strong public policy in favor of
the finality of judgments and only in exceptional cases should relief be granted. (Id., at p. 982.) Further, since the equitable power of the
court is being invoked, the relief sought is subject to equitable defenses,
including laches. Thus, relief may be
denied if it is shown that the moving party has been guilty of unreasonable
delay in seeking relief, causing prejudice to the opposing party. (McCreadie v. Arques (1967) 248 Cal.App.3d
39, 46 [plaintiff would be prejudiced by having to prove matters 5 years old if
judgment set aside].) The greater the
prejudice to the responding party, the more likely it is that the court will
determine that equitable defenses such as laches or estoppel apply to the
request to vacate a valid judgment.
(Rappleyea, supra, at p. 983.)
The terms “extrinsic fraud or
mistake” are interpreted broadly and cover almost any circumstance by which a
party has been deprived of a fair hearing.
There need be no actual “fraud” or “mistake” in the strict sense. However, equitable relief is available only
where the fraud or mistake was “extrinsic,” meaning the party was denied the
opportunity to be heard. If the fraud or
mistake goes to the merits of the action, or occurred at trial, it is deemed
intrinsic and is not a ground for relief.
Whether the defaulting party was represented by counsel is also significant. If the defendant had a lawyer and the
opportunity to litigate, any fraud or mistake will usually be classified as
intrinsic – unless the attorney has totally failed to represent the client.
d. Analysis
Defendant adequately showed that he
has grounds for relief. He presented a
competent declaration showing he was not served with the summons and
complaint. The case file itself reveals
a repeated failure to give notice when Plaintiff was instructed to do so. In light of the lack of timely opposition to
the motion, the motion is granted. The default
and default judgment are vacated.
Defendant is ordered to file a
separate copy of his answer, which is attached to his moving papers as Exhibit
F, within five days.
The Court sets a Case Management
Conference and Trial Setting Conference in two months, on Tuesday, 7/11/23 at
8:30 a.m. in Department S27 of the Long Beach Courthouse.
Defendant is ordered to give notice.
Parties who intend to submit
on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as
directed by the instructions provided on the court website at www.lacourt.org. If the department
does not receive an email indicating the parties are submitting on the
tentative and there are no appearances at the hearing, the motion may be placed
off calendar. If a party submits on
the tentative, the party’s email must include the case number and must identify
the party submitting on the tentative. If any party does not submit on the
tentative, the party should make arrangements to appear remotely at the hearing
on this matter.