Judge: Serena R. Murillo, Case: 20STCV07534, Date: 2022-08-26 Tentative Ruling
Case Number: 20STCV07534 Hearing Date: August 26, 2022 Dept: 29
TENTATIVE
Defendant Cristobal
Linares-Gonzalez’s motion to set aside and vacate default is DENIED.
Legal Standard
CCP § 473.5—Lack of Actual Notice
CCP § 473.5(a) provides: “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.” (CCP § 473.5(a).)
“A notice of motion to set aside a default or default
judgment and for leave to defend the action shall designate as the time for
making the motion a date¿prescribed by subdivision (b) of Section 1005, and it
shall 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.” (CCP §
473.5(b).)
“‘[A]ctual notice’ in section 473.5 ‘means genuine
knowledge of the party litigant . . . .’ [Citations.] ‘[A]ctual
knowledge’ has been strictly construed, with the aim of implementing the policy
of liberally granting relief so that cases may be resolved on their
merits.’ [Citation.]” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 547.) “[A] party can
make a motion showing a lack of actual notice not caused by avoidance of service
or inexcusable neglect . . .” (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180.) “‘[I]t does not
require a showing that plaintiff did anything improper . . . . [T]he defaulting
defendant simply asserts that he or she did not have actual notice’.” (Id.)
“[I]f the court has acquired jurisdiction, i.e., summons
has been served, but service of summons has not resulted in actual notice to a
defendant, although the defendant has acquired actual knowledge of the action
from another source, this does not preclude a defendant from seeking relief
under section 473.5.” (Ellard, 94 Cal.App.4th at 548.)
CCP section 473(d)
CCP § 473(d) provides
that “[t]he court may, upon motion of the injured party, or its own motion,
correct clerical mistakes in its judgment or orders as entered, so as to
conform to the judgment or order directed, and may, on motion of either party
after notice to the other party, set aside any void judgment or
order.”
“Notice of the
litigation does not confer personal jurisdiction absent substantial compliance
with the statutory requirements for service of summons.” (MJS
Enterprises, Inc. v. Superior Court (1984) 153 Cal.App.3d 555, 557 (citing Ault
v. Dinner For Two, Inc. (1972) 27
Cal.App.3d 145, 148).) When the summons was not served in substantial
compliance with the statutory requirements, the court does not obtain personal
jurisdiction over the defendant. (See ibid.) A “default
judgment entered against a defendant who was not served with a summons in the
manner prescribed by statute is void. Under § 473(d), the court may set aside a
default judgment which is valid on its face, but void, as a matter of law, due
to improper service.” (Ellard v. Conway (2001) 94 Cal.App.4th 540,
544.) Where service is challenged, the burden is on the plaintiff to
prove the facts requisite to an effective service. (Lebel v. Mai
(2012) 210 Cal.App.4th 1154, 1160.) Statutes “governing substitute
service shall be ‘liberally construed to effectuate service and uphold
jurisdiction if actual notice has been received by the defendant.’” (Hearn
v. Howard (2009) 177 Cal.App.4th 1193, 1201.)
Discussion
A.
CCP
section 473.5(a) – Lack of Actual Notice
Defendant moves to set aside the entry of
default under Code of Civil Procedure section
473.5(a) on the grounds that because Defendant was not served with the
summons and the complaint, Defendant did not have actual notice of the action,
and the improper service and lack of actual notice was not caused by
Defendant’s avoidance of service or inexcusable neglect.
I.
Timeliness
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.” (CCP § 473.5(a).)
In this case, the motion has not been
properly brought within six months after Defendant was provided written notice
that default was entered, as required by CCP § 473.5. First, according to
the proof of service of
the Notice of Entry of Default by Plaintiff in this matter, Defendant was
served with notice on September 4, 2020. Thus, Defendant had six months, or
until March 4, 2021, to bring this motion. However, Defendant filed ex parte
relief to set aside the default on February 24, 2022. Thus, Defendant's motion
is over 11 months late. Further, Defendant admits in
his motion that he discovered default was entered against him on July 21, 2021,
when a stipulation to continue trial was rejected “based on the
following reason(s): Other - Default entered as Defendant Cristobal
Linares-Gonzales on 9/04/20.” Thus, even if Defendant received notice on the
latter date, the motion is still untimely as he sought to set the default aside
seven months after July 21, 2021.
Therefore, the Court finds the motion is not timely under
CCP section 473.5(a).
B.
CCP
section 473(d)
Defendant also seeks relief under CCP section
473(d), arguing that the judgment is void.
I.
Timeliness
A
judgment void on its face—meaning where the invalidity is ‘apparent upon an
inspection of the judgment-roll’, which includes the proof of service (CCP §
670(a))—may be set aside pursuant to section 473(d) at any time. (See Manson,
Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.) Where a judgment
is valid on its face, but is nevertheless deemed void after considering
evidence beyond the judgment roll, the motion must be brought within the same
time as a motion brought under CCP § 473.5, namely 180 days after notice of the
default, or two years of entry of judgment, whichever is sooner. (See Rogers
v. Silverman (1989) 216 Cal.App.3d 1114.) “If the
invalidity can be shown only through consideration of extrinsic evidence, such
as declarations or testimony, the order is not void on its face. Such an
order must be challenged within the six-month time limit prescribed by section
473, subdivision (b), or by an independent action in equity.” (Ibid.
(citations omitted).)
The
judgment roll includes the following when the complaint is not answered and no
demurrer was filed: “the summons, with the affidavit or proof of service, the
complaint, the request for entry of default with a memorandum indorsed thereon
that the default of the defendant in not answering was answered, and the copy of
the judgment. (Code Civ. Proc. § 670, subd. (a).)
Plaintiffs filed a Proof of Service by Substitution as to
Defendant on August 4, 2020, wherein the declaration stated that the Summons
and Complaint was left at Plaintiff’s
place of business on July 13, 2020 in the presence of Elsa
Castellated, a manager in charge at Tortilla Inn Bar & Grill 18114
Parthenia Street, in Northridge, California, and subsequently mailed to
Plaintiff’s same place of business on July 14, 2020, effecting service on
Defendant ten days later on July 24, 2020. (Plaintiff’s Proof of Service, Exh.
A.)
Nothing on the proof of service
indicates that it is void on its face and Defendant does not make the argument
that it is. As such, the motion must have been
brought 180 days after notice of the default, or two years of entry of
judgment, whichever is sooner. As there is evidence that service of the default
was made on Defendant on September 4, 2022, or the latest July 21, 2021, as
discussed above, the motion is also untimely under CCP section 473(d).
C.
Extrinsic
Mistake
As a separate, independent basis for providing relief,
Defendant also seeks relief pursuant to the Court’s inherent authority to
vacate a judgment obtained due to extrinsic mistake.
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.
There are three
essential requirements to obtain relief on grounds of extrinsic fraud: (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.) There
is a strong public policy in favor of the finality of judgments and only in
exceptional cases should relief be granted. (Ibid.)
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.2d 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 v. Campbell, supra, 8 Cal.4th at p. 983.)
As to whether Defendant has a meritorious
defense, he merely provides the answer to the complaint.
As to mistake, Defendant argues that Plaintiffs
filed a Proof of Service by Substitution as to Defendant on August 4, 2020,
wherein the declaration stated that the Summons and Complaint was left at
Plaintiff’s place of business on July 13, 2020 in the presence of Elsa
Castellated, a manager in charge at Tortilla Inn Bar & Grill 18114
Parthenia Street, in Northridge, California, and subsequently mailed to
Plaintiff’s same place of business on July 14, 2020, effecting service on
Defendant ten days later on July 24, 2020. A responsive pleading was therefore
due 30 days after that on August 24, 2020. However, Plaintiffs’ Counsel had
demanded an answer to the Complaint by August 13, 2020, which was 30 days from
service by substitution, but did not allow the 10 days for mailing pursuant to
Code of Civil Procedure § 415.20. The Process Server’s declaration stated that
the Summons and Complaint was mailed a day after service by substitution on
July 14, 2020, effecting service on Defendant ten days later on July 24, 2020
which made a responsive pleading due 30 days after that on August 24, 2020, not
August 13, 2020, which Plaintiff had represented to Defendant’s Counsel.
Consequently, Plaintiff rushed to file a Request for Default. Plaintiffs’
filing for default did not conform with California CCP § 585 which states that
a request for entry of default must be filed within 10 days following a defendant’s
failure to timely file and serve a responsive pleading. On August 12, 2020,
Defendant’s Counsel requested an extension from Plaintiff until August 26, 2020
to file an answer. Despite Defendant’s further requests for extensions to
answer the complaint, Plaintiff would not grant a request, erroneously
believing that leave of court was required pursuant to California Rules of the
Court Rule 3.110(d). Consequently, Plaintiffs had filed a Default and the Court
entered the Default on September 4, 2020, after the statute deadline of
September 3, 2020.
Defendant argues he never received the
Summons and Complaint. He did not know that a suit had been filed against him,
and Defendant’s counsel had been diligent in attempting to locate him to let
him know. However, after hiring an investigator to locate Defendant,
Defendant’s brother informed the investigator, who then informed counsel that
defendant had been detained by the ICE on June 11, 2020 and was awaiting
deportation. Defendant’s counsel requested another extension from Plaintiffs to
file an answer, but the request was ignored. His brother agreed to proxy for
defendant as power of attorney over
him and on or about October 21, 2020, Defendant filed an Answer
to the Complaint concurrently with an application for Defendant’s brother to
act as Defendant’s Guardian Ad Litem. Subsequently Defendant had been deported
to Tijuana, Mexico on or about November 18, 2020, where he is to this day.
However, Defendant
has not addressed the last factor in order to obtain relief from extrinsic
mistake, namely, diligence in seeking to set aside the
default/default judgment once it was discovered. As noted above,
Defendant admits that he discovered default was entered against him on July 21,
2021, when a stipulation to continue trial was rejected “based on the following reason(s): Other -
Default entered as Defendant Cristobal Linares-Gonzales on 9/04/20.” As such, Defendant was aware in July of 2021 of the
default, yet waited seven months, until February of 2022, to file for ex parte
relief to set aside the default. As a result, Defendant has not been diligent in seeking to set aside
the default, and is not entitled to relief under the Court’s inherent
authority.
Conclusion
Accordingly, Defendant’s motion to set aside
and vacate default is DENIED.
Moving party is ordered to give notice.