Cho v. Bruder

Filed 3/23/06 Cho v. Bruder CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, William M. Monroe, Judge. Affirmed.

Stanley Arouty & Associates and Stanley Arouty for Plaintiff and Appellant.

Lawson, Macrae, Gress & Edrington, William H. Lawson III; Law Office of Priscilla Slocum and Priscilla Slocum for Defendants and Respondents.

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In this case involving a car accident, plaintiff appeals after the court granted the defendants' motion to set aside default and default judgment. The defendants' motion was based on lack of actual notice of the lawsuit. We find the trial court did not abuse its discretion in granting the motion for relief and affirm.

I

FACTS

On October 1, 2002, Eun Sook Cho and Frank Joseph Bruder were in a car accident in Westminster. At the scene of the accident, Bruder gave the police officer a copy of his driver's license and registration. The registration listed Bruder and Glenell Parker (collectively referred to as defendants) as the vehicle's owners with a Palm Springs address. On the police report, Bruder's stated address was in Newport Beach, which was the address on his driver's license. The home and work telephone numbers listed for Bruder on the police report were both in the 760 area code, and according to Bruder, were his telephone numbers in Palm Springs.

The defendants live at the Palm Springs address, and Bruder's son, also named Frank (middle name Jeffrey), and a tenant live at the Newport Beach address. Bruder visits the Newport Beach property approximately once a week. Bruder did not change his address with the DMV because he received automatic mail renewals and because he still owned the Newport Beach property and might return there someday. He receives bills at the Palm Springs address and has a Palm Springs business license.

In 2002, Cho's attorney began contacting Farmers Insurance, Bruder's carrier, and claims a paralegal sent Farmers copies of all relevant documents. Farmers sent return correspondence. On September 26, 2003, Cho sued Bruder and Parker for personal injury and property damage. Cho thereafter filed two proofs of service, one attesting that Bruder was personally served at a Newport Beach address, and the other attesting that substituted service was made on Parker at the same address.

Cho filed a request for entry of default in February 2004, which was entered, somewhat reluctantly, by the court. At the April 2004 hearing, the court noted the high amount of Cho's requested judgment and stated that if the defendants came to court, they might be able to set aside the default on an appropriate motion. Cho's counsel responded that he fully expected them to, and was seeking the default to provoke a response from the defendants. The court then entered the judgment for $250,334.50

Defendants claim they never received notice of entry of judgment, and first learned of the lawsuit when Cho demanded payment from Farmers in November 2004. In December, defendants filed a motion to set aside the default. Defendants argued that the judgment was void because they had not been served with a statement of damages under Code of Civil Procedure section 425.11,^[1] the judgment was void for lack of jurisdiction under section 473, subdivision (d), and lack of actual notice under section 473.5. Both defendants submitted declarations denying they ever received notice of the lawsuit prior to November 2004. Bruder specifically denied service on the date listed in the initial proof of service, stating that he had not been at the Newport Beach property on a Saturday night in â€