Judge Walter P. Schwarm, Case 30-2017-00900703 2022-09-13 Tentative Ruling

Judge: Walter P. Schwarm, Case: 30-2017-00900703, Date: 2022-09-13 Tentative Ruling

Defendant’s (Eric Derovanessian) Motion for Order Setting Aside Default and Default Judgment Based Upon Extrinsic Fraud (Motion), filed on 4-19-22 under ROA No. 72, is DENIED.

The Motion states, “Defendant moves to set aside the entry of default pursuant to the equitable power of the Court based on extrinsic fraud or mistake.” (Motion; 4:17-18.) The Motion asserts, “Defendant was deprived of his opportunity to have a fair adversarial hearing in court to defend this case, because he was never served with the Summons and Complaint and was not notified of this case until April 4, 2022.” (Motion; 5:26-6:1.) The Motion also states, “Even though Defendant does not make this motion pursuant to Section 473.5 (b) of the Code of Civil Procedure, he nonetheless provides sufficient notice under Cal. Civil Proc. §1005(b).” (Motion; 7:9-11.)

The Notice for this Motion states, “This motion is based upon California Code of Civil Procedure § 473(d) and the Courts inherent equitable power to provide relief to a party that was deprived of fair notice to come and defend this action.” (Motion; 2:6-8.)

The declaration in support of the Motion provides the following evidence: (1) “I was never served with the summons and complaint in this case.” (Derovanessian Decl., ¶ 3.); (2) “The proof of service in this case indicates that I was purportedly served by the summons and complaint on May 10, 2017 at 5683 169th Place SE, Bellevue, WA 98006 (‘Bellevue Property’) by personal service. That is incorrect.” (Derovanessian Decl., ¶ 4.); (3) “While I did at some point reside at that address, I moved out in early February of 2017 due to marital difficulties with my then spouse.” (Derovanessian Decl., ¶ 5.); and (4) “Since early February 2017 my ex-spouse was the only one residing at the Bellevue Property.” (Derovanessian Decl., ¶ 6.)

Code of Civil Procedure section 473, subdivision (d), provides, “The 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.” It does not appear that Code of Civil Procedure section 473, subdivision (d), applies since Code of Civil Procedures section 473, subdivision (d), states, “The 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.”

Ellard v. Conway (2001) 94 Cal.App.4th 540, 544 (Ellard), explains, “ ‘[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.] Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. [Citation.]’ [Citation.]’ Under section 473, subdivision (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. [Citations.]” “When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.’ ” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413; Footnote 35 omitted.)

Trackman v. Kenney (2010) 187 Cal.App.4th 175, 181 (Trackman), explains, “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. [¶] Second, the party can show that extrinsic fraud or mistake exists, such as a falsified proof of service, and such a motion may be made at any time, provided the party acts with diligence upon learning of the relevant facts. [Citations.] Kenney does not allege extrinsic fraud or mistake in this case. [¶] Both of these first two avenues of relief generally hinge on evidence about the method of purported service. [¶] We note that evidence may also be considered where there is a claim of lack of jurisdiction, e.g., based on lack of minimum contacts with the forum. [Citation.] Kenney does not make such a claim. [¶] The third avenue of relief is a motion to set aside the default judgment on the ground that it is facially void. (§ 473, subd. (d) [‘The court may ... set aside any void judgment. . .’]; see Manson, supra, 176 Cal.App.4th at p. 43, 97 Cal.Rptr.3d 522.) ‘A judgment or order that is invalid on the face of the record is subject to collateral attack. [Citation.] It follows that it may be set aside on motion, with no limit on the time within which the motion must be made.’ [Citation.] This does not hinge on evidence: A void judgment's invalidity appears on the face of the record, including the proof of service. [Citations.] [¶] The trial court found that Kenney's declarations showed he was not actually served, and that another address could have been found for him. But because Kenney's motion was filed more than two years after the entry of judgment, his declarations were irrelevant. The only avenue of relief open to him was to show that the judgment was void, by showing the proof of service was void on its face. [Citation.]” (Italics in Trackman.)

Since Defendant has filed this Motion more than two years after the entry of judgment (Judgment filed on 7-11-17 under ROA No. 26), Defendant has the burden of showing that the Proofs of Service are void on their face.

Here, Plaintiff’s (Merchant Capital Source, LLC) Opposition to Defendant’s Motion for Order Setting Aside Default and Default Judgment Based Upon Extrinsic Fraud (Opposition) provides evidence that Defendant and Defendant—Eric Der Ovanessian, DDS, P.S., Inc., a Washington Corporation dba Northwest Institute of Consmetic [sic] Dentistry were personally served with a copy of the summons on 5-10-17 by a Jon Holland a King County Deputy. (Tag Decl., ¶¶ 8, 9, and Exhibits 1 and 2.) This evidence is sufficient to carry Plaintiff’s burden of showing effective service upon Defendant by way of personal service pursuant to Code of Civil Procedure section 415.10. These proof of service are valid on their face.

Since the Proofs of Service are valid on their face, the court DENIES Defendant’s (Eric Derovanessian) Motion for Order Setting Aside Default and Default Judgment Based Upon Extrinsic Fraud filed on 4-19-22 under ROA No. 72.

Plaintiff is to give notice.