Judge: Mark H. Epstein, Case: 21SMCV01421, Date: 2024-05-21 Tentative Ruling

Case Number: 21SMCV01421    Hearing Date: May 21, 2024    Dept: I

The motion to set aside the default is DENIED.

Plaintiff filed a breach of contract action against defendants.  Default was entered on October 19, 2021 and judgment was entered on December 17, 2021.  The motion to set aside the default was made on April 4, 2024.  Defendants’ evidentiary objections are OVERRULED.  The emails are properly authenticated by counsel who can do so as part of the case file.  Further, defendants’ counsel Multani was defendants’ attorney at the time of the emails, and thus his authorized statements are statements of a party opponent and subject to an exception to the hearsay rule.

Defendants argue that service was not proper because it was made on a person that they do not recognize, thereby (they argue) rendering the service improper and the judgment void.  A void judgment can be attacked at any time; there is no time limit.  However, not all judgments where service was improper are void.  Rather, a judgment is only void where the invalidity is apparent from the judgment roll alone.  (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426.)  That means that a review of the judgment roll, without any additional evidence, reveals the deficiency.  (Kremerman v. White (2021) 71 Cal.App.5th 358.)  )That is not so harsh a rule as might first appear.  Where the infirmity is apparent only by considering other evidence, the judgment may still be set aside on a proper and timely showing.)  The judgment roll consists of the summons, the proof of service, the complaint, the request for entry of default, and the judgment.  So, for example, if the proof of service shows that the summons was served only by mail on a California resident, that would be improper on its face and the judgment would be void.  Similarly, if the complaint set forth no dollar amount but the judgment was for, say, $1 million (and there were no statement of damages filed), that would be improper on its face and therefore void.

Here, defendants contend that service was improper.  The proof of service shows service by substituted service followed up by mail.  That is proper on its face.  Defendants assert that the substituted service was not proper because the person on whom service was actually made is not known to them or was not authorized to accept service of process.  Maybe so, but that is not apparent from the judgment roll; it is only apparent upon consideration of the declaration.  Therefore, the judgment is not void; it is merely voidable.

Accordingly, this motion is more properly brought pursuant to Code of Civil Procedure section 473.5, which allows a judgment valid on its face to be voided where there is no actual notice.  However, that statute has a time limit and if the motion is not filed within that time then the statute affords no relief.  (Trackman v. Kenney (2010) 187 Cal.App.4th 175.)  The motion here is untimely, having been brought more than two years after entry of the default judgment.  There are also technical defects, such as the failure to attach a draft answer, but the court could likely get through the non-lodging of the answer if the motion was otherwise proper.

Of the most concern is the fact that plaintiff establishes that defendants were aware of this problem in July 2022.  There is an email exchange showing that defendants were aware of the default judgment and a statement that defendants would shortly file a motion to vacate.  Notwithstanding that actual knowledge and the promise to file a motion quickly, the actual motion was not filed until 21 months after the email acknowledging the problem.  That fact, which defendants neglected to mention in their moving papers, is fatal to this motion.

Because the judgment is not void, and because the time to bring a motion to vacate a voidable judgment has expired, and because defendants had actual knowledge of the judgment but did nothing for 21 months, the motion is DENIED.