Judge Michael Small, Case Number: 21STCV13572, Date: 2023-08-08 Tentative Ruling

Judge: Michael Small, Case: 21STCV13572, Date: 2023-08-08 Tentative Ruling

Case Number: 21STCV13572 Hearing Date: April 9, 2024 Dept: 57

Pending before the Court is the motion of Cross-Defendant Dr. David Matian (“Dr. Matian”) to set aside the December 14, 2022 clerk’s order entering a default against Dr. Matian for failing to respond to the Cross-Complaint of Defendants Matian Law Group and Negar Matian (collectively, “MLG”). Dr. Matian’s motion is brought under Code of Civil Procedure Sections 473(d) and 473.5. In the Court’s view, neither provision is available to Dr. Matian to set aside the clerk’s default. Accordingly, Dr. Matian’s motion is denied.

Section 473(d) authorizes trial courts to set aside any void judgment or order. A judgment or order may be shown to be void on its face for Section 473(d) purposes “when [its] invalidity is apparent from an inspection of the judgment roll or court record without consideration of extrinsic evidence.” (Pittman v. Beck Park Apartments (2018) 20 Cal.App.5th 1020-1021.) Alternatively, a judgment that appears valid on the face of the judgment roll or court record can nevertheless be proven void through the presentation of extrinsic evidence, including extrinsic evidence bearing on service of process. (Id. at p. 1021; Corcoran v. Arouh (1994) 24 Cal.App.4th 310, 313-315.).

The distinction between the two ways to demonstrate that a judgment is void under Section 473(d) is important for two reasons. First, a judgment or order that is valid on its face is presumed valid under Evidence Code Section 647; the burden is thus on the party challenging the judgment or order to overcome that presumption of validity. (Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1425.) Second, a challenge to a facially void judgment or order may be brought at any time. (Pittman v. Beck Apartments, supra, 20 Cal.App.5th at p. 1021). By a contrast a challenge to the validity of the judgment or order through the presentation of extrinsic evidence must be brought within six months of entry of the judgment or order. (Ibid; see also Ramos v. Homeward Residential, Inc. (2014) 223 Cal.App.4th1434, 1440.) There is authority holding that the deadline for filing a Section 473(d) motion to set aside a judgment or order that is not void on its face but is alleged to be void based on extrinsic evidence submitted with the motion is two years after entry of the judgment or order. (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180.) With this split in authority on the length of the deadline for filing Section 473(d) motions that are based on extrinsic evidence, trial courts have discretion to follow the precedents on either side of the divide. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456.) This Court has chosen to follow the precedents that hold that the deadline is six months.

Dr. Matian does not contend that the clerk’s default order is invalid on its face. Rather, he challenges the order’s validity based on the presentation of extrinsic evidence -- specifically, Dr. Matian’s declaration and supporting documentation. According to Dr. Matian, this evidence shows that he did not receive service of MLG’s Cross-Complaint.

In the Court’s view, Dr. Matian’s evidence is insufficient to overcome the presumed validity of the order. On January 12, 2022, MLG filed a proof of personal service of the Cross-Complaint. The proof of service, accompanied by a process server’s declaration, states that Dr. Matian was personally served with the Cross-Complaint at 11:55 a.m. on December 18, 2021. Dr. Matian states that he was not at this residence at that time, on that day, but rather, was at a birthday party for his mother at a location 32 miles away. The only proof of his absence from the residence when the process server says he arrived that Dr. Matian presents is a screenshot of his calendar blocking out 10am to 4pm that day for his “Mom’s birthday brunch” with a sub-event indicating the reservation at Café Sierra from 11am to 1pm. A calendar time slot for a reservation for his mother’s birthday party does not show that Dr. Matian actually was at the party when the process served states that he served the Cross-Complaint on Dr. Matian at his residence at 11:55 a.m. on December 18, 2022.

In any event, Dr. Matian’s Section 473(d) motion is untimely. He filed it on February 23, 2024, which is well beyond the six-month deadline for Section 473(d) motions discussed above.

Dr. Matian fares no better under Section 473.5. That provision states “[w]hen a service of 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.” Dr. Matian’s reliance on Section 473.5 fails for two reasons. First, Dr. Matian had actual notice of the Cross-Complaint. He admits that he learned that he was a party to this action through the Cross-Complaint in December 2022. Second, Dr. Matian’s motion under Section 473.5 is untimely. Section 473.5 motions to set aside a clerk’s default must be served and filed within 180 days of service of a written notice that a default was entered. (Section 473.5(a).) On December 14, 2022, MLG provided written notice to Dr. Matian of the clerk’s entry of a default against him. Dr. Matian’s filing of the motion to set aside the default on February 23, 2024 is well beyond the 180-day time limit.