Cole v. Haymaker

Filed 5/21/08 Cole v. Haymaker CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, Michelle Rosenblatt, Judge. Affirmed.

Robert W. Hirsh & Associates and Robert W. Hirsh for Defendant and Appellant.

Law Offices of Michael G. Steiniger and Michael G. Steiniger for Plaintiff and Respondent.

________________________________________

Defendant and appellant Fredrica Haymaker appeals from an order denying her motion to set aside a default judgment entered in favor of Michelle Cole in this action concerning the sale of real property. Haymaker contends: (1) she was never served with the operative amended complaint, and therefore, the default and default judgment were void; and (2) the default and default judgment should be set aside on equitable grounds. We hold that substantial evidence supports the trial courts findings and the trial court did not abuse its discretion in its ruling, and therefore affirm the order.

FACTS AND PROCEDURAL BACKGROUND

On August 12, 2005, Cole filed an action against several defendants, including Haymaker, for fraud and breach of contract arising out of the sale of real property. On October 25, 2005, a process server filed a declaration stating that he had knocked at the door of 10421 Margate Street in North Hollywood on three occasions without any answer. On the fourth attempt, the process server left the complaint and other documents for Haymaker with a person at the address named Joe Seldan.

On November 2, 2005, Cole filed an amended complaint alleging the same causes of action. A proof of service was filed on March 16, 2006. The process server checked boxes to indicate that copies of the summons, complaint, alternative dispute resolution package, and other specified documents had been personally delivered and served on Haymaker at 3708 Canfield Avenue in Los Angeles.

On June 29, 2006, Cole filed a request for entry of default on the amended complaint. The document stated that a copy of the request for entry of default had been mailed to Haymaker. Haymakers default was entered that day. A default prove-up hearing was held on October 25, 2006. The trial court entered a default judgment on November 29, 2006.

In June 2007, Haymaker received documents seeking to enforce the judgment. On June 26, 2007, Haymaker filed a motion to vacate the judgment pursuant to Code of Civil Procedure section 473, subdivisions (b) and (d),^[1]and the trial courts inherent authority. Haymaker argued that the judgment was void, because she was never served with the amended complaint or any document showing that Cole was seeking a judgment against her. In addition, Haymaker argued that the trial court could set aside the judgment on the grounds of extrinsic fraud and extrinsic mistake, because she had never been served with the entry of default or default judgment.

Cole filed an opposition stating that Haymaker was served with the amended complaint and the request for entry of default. In addition to her own declaration, Cole submitted the declaration of the process server. The process server did not have an independent recollection of the documents served, but she had a specific recollection of serving Haymaker and the process servers spouse witnessed the delivery of the documents.

After a hearing on August 3, 2007, the trial court found Haymaker had been validly served with the amended complaint and denied the motion to vacate the default judgment. The judgment could not be set aside under section 473, subdivision (b), because Haymaker had not filed the motion within six months of the date of entry of judgment. The judgment could not be set aside under section 473, subdivision (d), because the judgment was not void for lack of service. The trial court noted that Haymaker had been served with the original complaint on October 9, 2005, and there would have been no reason for Cole to re-serve the original complaint after the amended complaint had been filed. The March 16, 2006 proof of service signed by the process server, as well as the process servers declaration, established that Haymaker was personally served with the amended complaint. In addition, the trial court noted the amended complaint did not contain any substantive changes. Nor was Haymaker entitled to equitable relief, because she had failed to show that extrinsic fraud or mistake prevented her from a hearing on the merits. She failed to articulate any excuse for failing to offer a defense after she was served or for failing to act diligently. Haymaker filed a timely notice of appeal.

DISCUSSION

Relief Under Section 473, Subdivision (d)

Haymaker contends the trial courts finding that she was served with the amended complaint is not supported by substantial evidence. We disagree.

Section 473, subdivision (d) provides: the court . . . may, on motion of either party after notice to the other party, set aside any void judgment or order.

When the trial court exercises its discretion to deny a motion to vacate, we review the trial courts order for an abuse of discretion. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.) However, when the issue is whether the default and default judgment were in fact void, we conduct a de novo review of the trial courts determination. (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495-496.)

Whether the evidence is oral testimony, affidavits, or documents, when there is conflicting evidence, the trial courts express and implied factual determinations are not disturbed on appeal if supported by substantial evidence. (Kulko v. Superior Court (1977) 19 Cal.3d 514, 519, fn. 1.) So far as it has passed on the weight of evidence or the credibility of witnesses, [the trial courts] implied findings are conclusive. . . . [Citations.] When an issue is tried on affidavits, the rule on appeal is that those affidavits favoring the contention of the prevailing party establish not only the facts stated therein but also all facts which reasonably may be inferred therefrom, and where there is a substantial conflict in the facts stated, a determination of the controverted facts by the trial court will not be disturbed. [Citations.] (Ibid.)

In this case, the trial court found that Haymaker was served on March 16, 2006, with the amended complaint. Based on the timing of the events, the trial court could reasonably infer from the evidence that Cole believed Haymaker was served with the original complaint in October 2005, and after the amended complaint was filed in November 2005, Cole served Haymaker with the amended complaint in March 2006. We note that Haymaker did not submit any copies of the documents that she admits receiving from the process server. (Evid. Code, 412 [a partys evidence should be viewed with distrust if it was within the partys power to produce stronger, more satisfactory evidence].) We conclude the trial courts finding that Haymaker was served with the amended complaint is supported by permissible inferences.

Equitable Relief

Haymaker contends the trial court abused its discretion by failing to set aside the judgment on the basis of extrinsic mistake or extrinsic fraud. Contrary to Haymakers argument, the trial court did not abuse its discretion

[A] trial court may . . . vacate a default on equitable grounds even if statutory relief is unavailable. [Citation.] [Citation.] [] A challenge to a trial courts order on a motion to vacate a default on equitable grounds is reviewed for an abuse of discretion. (Rappleyea v. Campbell, supra, 8 Cal.4th at p. 981.) (Cruz v. Fagor America, Inc., supra, 146 Cal.App.4th at pp. 502-503.)

Extrinsic mistake refers to circumstances outside of the litigation that have prevented a party from obtaining a hearing on the merits. (Cruz v. Fagor America, Inc., supra, 146 Cal.App.4th at p. 502.) Extrinsic mistake exists when the ground for relief is not so much the fraud or other misconduct of one of the parties as it is the excusable neglect of the defaulting party to appear and present his claim or defense. [Citation.] If such neglect results in an unjust judgment-one entered without a fair adversary hearing-the defendant may have a basis for equitable relief. [Citation.] (Id. at p. 503.)

Relief on the ground of extrinsic fraud or mistake is not available to a party if that party has been given notice of an action yet fails to appear, without having been prevented from participating in the action. [Citation.] To set aside a judgment based upon extrinsic mistake one must satisfy three elements. First, the defaulted party must demonstrate that it has a meritorious case. Second[], the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Last[], the moving party must demonstrate diligence in seeking to set aside the default once . . . discovered. [Citation.] (Rappleyea v. Campbell, supra, 8 Cal.4th at p. 982, italics omitted.) (Cruz v. Fagor America, Inc., supra, 146 Cal.App.4th at p. 503.)

Extrinsic fraud occurs when a party is deprived of his opportunity to present his claim or defense to the court, where he was kept in ignorance or in some other manner fraudulently prevented from fully participating in the proceeding. [Citation.] Examples of extrinsic fraud are: concealment of the existence of a community property asset, failure to give notice of the action to the other party, convincing the other party not to obtain counsel because the matter will not proceed (and it does proceed). [Citation.] A partys representation of the value of an asset, favorable to himself, does not constitute extrinsic fraud. [Citation.] . . . [] Fraud is intrinsic and not a valid ground for setting aside a judgment when the party has been given notice of the action and has had an opportunity to present his case and to protect himself from any mistake or fraud of his adversary, but has unreasonably neglected to do so. [Citation.] Such a claim of fraud goes to the merits of the prior proceeding which the moving party should have guarded against at the time. . . . [Citation.] (In re Marriage of Varner (1997) 55 Cal.App.4th 128, 140.)

The trial court did not abuse its discretion in concluding that Haymaker was served with the amended complaint, as well as other documents, and had offered no excuse for her failure to respond and offer a defense. The trial court also reasonably found that Haymaker failed to establish that extrinsic fraud that prevented her from presenting her defense to the trial court after she received service of the documents in this case. Under these circumstances, the trial courts determination that Haymaker was not entitled to relief on the basis of extrinsic mistake was not an abuse of discretion.

DISPOSITION

The judgment is affirmed. Respondent Michelle Cole is awarded her costs on appeal.

KRIEGLER, J.

We concur:

TURNER, P. J.

MOSK, J.

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^[1] All further statutory references are to the Code of Civil Procedure unless otherwise noted.