Judge: Michelle Williams Court, Case: 19STCV16164, Date: 2022-08-16 Tentative Ruling

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Case Number: 19STCV16164    Hearing Date: August 16, 2022    Dept: 74

19STCV16164           ARTURO VAZQUEZ vs ELMER ALEXANDER UCEDA

Defendant Elmer Alexander Uceda’s Motion to Vacate and Set Aside the Default and Default Judgment

TENTATIVE RULING:  The motion is DENIED.

Background

On May 9, 2019, Plaintiff Arturo Vazquez and Luz Maria Vazquez filed this action against Defendant Elmer Alexander Uceda. The complaint sought specific performance and damages based upon allegations that Defendant refused to close escrow to complete the sale of real property.

The clerk entered Defendant’s default on August 19, 2019 and the Court entered default judgment on January 10, 2020.

On May 13, 2021, Defendant filed its first motion to set aside and vacate default and default judgment contending he was not personally served with process and had no knowledge of the proceeding until he received notice of levy from the bank.

On November 8, 2021, the Court denied Defendant’s motion without prejudice ruling:

While the Defendant claims he never received the summons, the registered process server’s declaration creates a presumption of valid service and the description of the person served is sufficiently close to the physical description of the defendant. Further, Defendant provided his CA driver’s license, but redacted his address. As such, Defendant has failed to rebut the presumption that service was proper.

(November 18, 2021 Min. Order.)

Motion

On May 5, 2022, Defendant filed a second motion to vacate and set aside the default and default judgment. Defendant contends he was not served with the summons and complaint and therefore the default and default judgment should be set aside as void.

Opposition

In opposition, Plaintiff contends the motion is untimely and Defendant’s evidence is insufficient to demonstrate that he was not personally served with the summons and complaint.

Reply

In reply, Defendant reiterates the arguments made in the moving papers.

Motion to Vacate Default and Default Judgment

Standard

“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.” (Code Civ. Proc., § 473.5(a).) The motion must “be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect” as well as the proposed answer to be filed. (Code Civ. Proc., § 473.5(b).)

Pursuant to Code of Civil Procedure section 473(d), “[t]he court may, . . . on motion of either party after notice to the other party, set aside any void judgment or order.” “Where a party moves under section 473, subdivision (d) to set aside ‘a judgment that, though valid on its face, is void for lack of proper service, the courts have adopted by analogy the statutory period for relief from a default judgment’ provided by section 473.5, that is, the two-year outer limit.” (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180.)

Defendant Has Not Demonstrated a Basis for Relief

As an initial matter, Plaintiff argues that the motion is an improper motion for reconsideration pursuant to Code of Civil Procedure section 1008. (Opp. at 4:10-5:15.) However, the Court denied the prior motion without prejudice and Section 1008 does not apply. (Farber v. Bay View Terrace Homeowners Assn. (2006) 141 Cal.App.4th 1007, 1015 (“[T]he trial court indicated it wanted to reconsider the fee issue when it denied the first motion without prejudice, so Code of Civil Procedure section 1008 is inapplicable. Denial of a motion without prejudice impliedly invites the moving party to renew the motion at a later date, when he can correct the deficiency that led to the denial.”).)

On July 11, 2019, Plaintiff filed a proof of service of summons indicating personal service upon Defendant Elmer Alexander Uceda at 27109 Honby Ave, Santa Clarita, CA 91351 on July 7, 2019 at 12:15 p.m. The proof of service is valid on its face, (Code Civ. Proc. § 417.10), and was verified by a registered process server. (Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750 (“Evidence Code section 647 provides that a registered process server's declaration of service establishes a presumption that the facts stated in the declaration are true.”)

The clerk entered Defendant’s default on August 19, 2019 and the Court entered default judgment on January 10, 2020.

Defendant contends he was not served with the summons and complaint. Defendant states on the alleged date of service he had “already moved out of the Honby Ave. property and [he] was residing with [his] mother, Lidia Martinez.” (Uceda Decl. ¶¶ 5-6, 8.) Defendant does not provide a declaration from Lidia Martinez. Defendant provides a copy of his driver’s license issued on September 18, 2019, (id. Ex. B), which is not relevant to the question of his residence on July 7, 2019. Defendant contends he does not match the exactly match the description provided by the process server. However, the Court previously found the process server’s description of the person served, (Del Cid Decl. ¶ 4), is sufficiently close to the physical description of the defendant.

Defendant also states at the date and time of service he “was working for Edgar Hernandez at his company called D&R Catering, located at 21610 Lassen Street, Chatsworth, CA 91311.” (Id. ¶ 7.) Defendant provides a two-paragraph declaration from Edgar Hernandez stating:

On July 7, 2019, Elmer Alexander Uceda was working for me at my catering business D&R Catering, located at 61610 Lassen Street, Chatsworth from sunrise to sunset.

I had a big catering job that day and Mr. Uceda was working by my side the entire morning, afternoon and early evening.

(Hernandez Decl. ¶¶ 1-2.)

Judgment was entered on January 10, 2020 and Defendant’s motion, filed on May 5, 2022, argues the judgment is void for lack of proper service. Defendant contends “Section 473(d) contains no time limitation on a challenge to a void default judgment whether a defendant has no actual notice of the lawsuit in question.” (Mot. at 6:21-22.) The authority cited by Defendant does not support of his argument. In Selma Auto Mall II v. Appellate Department (1996) 44 Cal.App.4th 1672, 1683, the court noted it “has power to vacate an order void on its face at any time.” Here, the judgment is not void on its face. In Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1250 the court addressed the lack of personal jurisdiction over alleged out of state residents and the motion to vacate was made “under section 473 within two months after its entry.” Accordingly, Strathvale did not address the timing requirements of a motion seeking to establish a facially valid judgment is void for lack of service.

The Court finds his motion is untimely under both Code of Civil Procedure sections 473(d) and 473.5:

Section 473.5 does not offer [Defendant] an avenue for relief because [Defendant’s] motion was filed over two years after the entry of judgment. . . . Where a party moves under section 473, subdivision (d) to set aside ‘a judgment that, though valid on its face, is void for lack of proper service, the courts have adopted by analogy the statutory period for relief from a default judgment” provided by section 473.5, that is, the two-year outer limit. [Citations]

Thus, defendant cannot assert under section 473, subdivision (d) that the judgment, although facially valid, is void for lack of service.

(Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180. See also Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 301 n.3 (“A motion for relief from a default judgment which is alleged to be void for lack of valid service of process may be brought within two years after entry of the judgment.”); Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1126.) These are the only grounds claimed for Defendant’s motion. (Mot. at 7:24-8:2 (“the Court should set aside the default judgment against Defendant UCEDA pursuant to Code of Civil Procedure Section 473.5. . . . In the alternative, the Court should set aside the default judgment pursuant to Code of Civil Procedure Section 473(d).”).)

Defendant notes “California courts generally disfavor any judgments by default.” (Mot. at 4:18; Reply at 1:23.) However, this is an incomplete statement of California policy. “[D]uring the period when relief under section 473 is available, there is a strong public policy in favor of granting relief and allowing the requesting party their day in court. Beyond this period there is a strong public policy in favor of the finality of judgments and only in exceptional circumstances should relief be granted.” (In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1071.) Here, the judgment at issue was entered over two years ago and the time for relief pursuant to Code of Civil Procedure section 473 has expired.

A motion to set aside a void judgment due to extrinsic fraud does not have a statutory time limit. (See Department of Industrial Relations v. Davis Moreno Construction, Inc. (2011) 193 Cal.App.4th 560, 570 (“A motion to vacate a judgment for extrinsic fraud is not governed by any statutory time limit, but rather is addressed to the court's inherent equity power to grant relief from a judgment procured by extrinsic fraud.”).) However, Defendant does not specifically address any of the requirements of establishing a right to relief for extrinsic fraud. (Trackman, supra, 187 Cal.App.4th at 181; Rodriguez, supra, 236 Cal.App.4th at 751 (“Moreover, even if evidence of extrinsic fraud existed, Cho did not establish he had a meritorious defense—a necessary element for equitable relief. [Citation] He attached a proposed answer to his motion reciting a kitchen sink full of affirmative defenses, but he did not attempt to demonstrate any of these defenses had merit by, for example, explaining the underlying facts and applying the law to them.”).) Furthermore, a party seeking relief based on extrinsic fraud must act diligently. (Stiles v. Wallis (1983) 147 Cal.App.3d 1143, 1150.) Defendant has not demonstrated the requisite diligence. Defendant admits learning of the default in January of 2021. (Uceda Decl. ¶ 18.) Defendant did not file the first motion to vacate until May 13, 2021, which was denied on November 8, 2021, and Defendant waited another six months to file the instant motion on May 5, 2022, and did not seek make the required showing for relief based upon extrinsic fraud in either motion.

The motion is DENIED in its entirety.