Judge Robert B. Broadbelt, Case Number: BC697057, Date: 2025-01-15 Tentative Ruling

RESPONDING PARTY: Assignee of Judgment Fidelity National Title Insurance Company

Amended Motion to Set Aside Default Judgment and Stay Execution of Default Judgment

The court considered the amended moving papers, opposition to the amended motion, and reply papers filed in connection with this motion.

Plaintiff WFG National Title Insurance Company (“Plaintiff”) filed this action on March 7, 2018, against defendants Raul Hernandez, Efrain Hernandez, and Raul A. Hernandez.

On May 11, 2018, the clerk entered the default of, inter alia, defendant Efrain Hernandez (“Defendant”). (May 11, 2018 Request for Entry of Default, p. 1.) On March 29, 2019, the court entered the operative Amended Judgment by Default in favor of Plaintiff and against Defendant and nonmoving defendants Raul Hernandez and Raul A. Hernandez. (Mar. 29, 2019 JUD-100, ¶¶ 1, 4, 6.) Thereafter, on May 17, 2024, Fidelity National Title Insurance Company (“Fidelity”) filed an “Acknowledgement of Assignment of Judgment” acknowledging the assignment of all rights, title, and interest to collect the money judgment entered in favor of Plaintiff in this action. (May 17, 2024 Acknowledgement of Assignment.)

Defendant now moves the court for an order setting aside the default and default judgment entered against him and in favor of Plaintiff on the grounds that (1) service on him was improper and therefore the default and default judgment are void, and (2) Defendant was prohibited from presenting a defense to this action, such that the court should set aside the default and default judgment on equitable grounds.

First, the court finds that Defendant has not met his burden to show that the default and default judgment are void within the meaning of Code of Civil Procedure section 473, subdivision (d).

“The court . . . may, on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc., § 473, subd. (d).) “In determining whether an order is void for purposes of section 473, subdivision (d), courts distinguish between orders that are void on the face of the record and orders that appear valid on the face of the record but are shown to be invalid through consideration of extrinsic evidence.” (Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1020.) “If the invalidity can be shown only through consideration of extrinsic evidence, such as declarations or testimony, the order/judgment is not void on its face.” (Kremerman v. White (2021) 71 Cal.App.5th 358, 370.)

The court finds that Defendant has not shown that the default judgment is void based only on the judgment roll because he has instead argued that the default judgment is void based on evidence that (1) the co-occupant with which the summons and complaint were left, nonmoving defendant Raul Hernandez (“R. Hernandez”), did not inform Defendant of this action, and (2) Defendant did not use R. Hernandez’s address as Defendant’s place of business or mailing address, such that substituted service at this address was invalid. (Hernandez Decl., ¶ 9.) Because “the invalidity [of service on Defendant] can be shown only through consideration of [the above-described] extrinsic evidence,” the default judgment against Defendant “is not void on its face” and therefore the court cannot set it aside pursuant to Code of Civil Procedure section 473, subdivision (d). (Kremerman, supra, 71 Cal.App.5th at p. 370.)

Further, while Defendant has argued that the default judgment is void on the judgment roll because “copies of the summons were addressed solely to [R. Hernandez],” the court disagrees. (Mot., p. 6:6-7.) The summons filed on March 7, 2018 lists all named defendants, and the proof of service (1) identifies the party served as Defendant, and (2) states that the mailed summons and Complaint were addressed to Defendant. (Mar. 7, 2018 SUM-101, p. 1; April 12, 2018 Proof of Service of Summons, ¶ 3, subd. (a) [listing “Efrain Hernandez, an individual” as the party served] and p. 3 [Proof of Service by Mail stating that the summons, complaint, and case management documents were mailed to “Efrain Hernandez” at the address of service].)

Second, the court finds that Defendant has shown that the court may set aside the default and default judgment entered against him pursuant to the court’s equitable powers. The court therefore exercises its discretion to grant Defendant’s motion.

“A party seeking relief under the court’s equitable powers must satisfy the elements of a ‘stringent three-pronged test’: (1) a satisfactory excuse for not presenting a defense, (2) a meritorious defense, and (3) diligence in seeking to set aside the default.” (Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13, 29.) “A defendant has a satisfactory excuse if it shows that an extrinsic fraud or extrinsic mistake occurred.” (Ibid.)

The court finds that Defendant has shown (1) a satisfactory excuse for not presenting a defense to this action, based on Defendant’s denial of a fair adversary hearing as a result of R. Hernandez’s conduct in failing to advise Defendant of the action after service was made by leaving a copy of the summons and Complaint with R. Hernandez, which the court finds was deliberate based on R. Hernandez’s later conduct in failing to explain to Defendant that the papers that he received in January 2024 involved this action, (2) a meritorious defense to this action based on Defendant’s declaration stating that he did not know of or sign the note dated April 25, 2014, nor has he ever been aware of or signed a Deed of Trust to secure that note, and (3) diligence in seeking to set aside the default, based on (i) Defendant’s understanding that this action was filed against him in January or June 2024,[1] and (ii) Defendant’s filing this motion in August 2024. (Kramer, supra, 56 Cal.App.5th at p. 29; Luxury Asset Lending, LLC v. Philadelphia Television Network, Inc. (2020) 56 Cal.App.5th 894, 910911 [extrinsic fraud usually arises when a party is denied a fair hearing because he has been deliberately kept in ignorance of the action or proceeding]; Hudson v. Foster (2021) 68 Cal.App.5th 640,664 [“The terms extrinsic fraud and extrinsic mistake have been interpreted broadly, encompassing ‘almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing’”]; Mechling v. Asbestos Defendants (2018) 29 Cal.App.5th 1241, 1246 [“only a minimal showing is necessary” to support a finding of a meritorious defense, requiring only “‘facts indicating a sufficiently meritorious claim to entitle [it] to a fair adversary hearing’”]; Hernandez Decl., ¶¶ 9; Supp. Hernandez Decl., ¶¶ 6, 11; Compl., ¶¶ 12 [alleging that the April 25, 2014 note was made by, inter alia, Defendant], 13 [alleging note was not paid], 17-19 [Plaintiff was required to pay off the note], 21-22, 25-26].) Thus, the court finds that Defendant has established each element required for equitable relief. (Ibid.)

The court denies as moot Defendant’s request that the court stay the writ of execution of the judgment.

The court notes, as Fidelity has raised in its opposition, that the March 29, 2019 judgment shall not be set aside as against nonmoving defendants Raul Hernandez and Raul A. Hernandez.

The court grants defendant Efrain Hernandez’s motion to set aside default judgment.

The court orders that (1) the May 11, 2018 default of defendant Efrain Hernandez is set aside, and (2) the March 29, 2019 Amended Judgment by Default is set aside, but only as against defendant Efrain Hernandez.

The court sets a Case Management Conference for hearing on May 20, 2025, at 8:30 a.m., in Department 53.

[1] The court notes, as Fidelity argues in its opposition, that Defendant has stated that he received some papers that included R. Hernandez’s name on them in January 2024. (Supp. Hernandez Decl., ¶ 5.) This appears to refer to the January 8, 2024 letter sent to Defendant by Fidelity, in which Fidelity (i) demanded that Defendant take action to satisfy the subject lien and (ii) stated facts regarding the existence of this action and the judgment entered in this action. (Breeling Decl., Ex. 4.) However, even if Defendant should have discovered this action as of January 2024, the court finds that he acted with substantial diligence in seeking relief on August 2, 2024.

wfg national title insurance company ; Plaintiff, vs. raul hernandez , et al.; Defendants.	Case No.:	BC697057

	Hearing Date:	January 15, 2025

	Time:	10:00 a.m.

	[tentative] Order RE: defendant’s amended motion to set aside default judgment and stay execution of default judgment