Martin v. Badgley

Filed 5/2/07 Martin v. Badgley CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County, John A. Torribio, Judge. Affirmed and remanded for further proceedings.

Malvina Martin, in pro. per. for Plaintiffs and Appellants

Hanger, Levine & Steinberg and Jody Steinberg for Defendants and Respondents

____________________________________

In a lawsuit filed after an automobile accident, plaintiffs and appellants Malvina Martin and her family (Martin) obtained a default judgment against defendant and respondent Lynne Badgley. The trial court granted Badgleys motion under Code of Civil Procedure section 473.5 to set aside the default. Finding no abuse of discretion by the court, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Martin was involved in an automobile accident with Badgley in April 2002. On March 19, 2003, Martin filed her complaint for injuries to herself and her family members who were also in the car at the time of the accident. Martin, through the Los Angeles County Sheriffs Department, attempted service of the complaint at the address listed on the police report, but the Sheriff was unable to locate the address and did not complete service of process. Thereafter, on order of the court, service by publication was completed. Badgley did not file an answer. Default was entered, and, after prove-up, the court entered judgment on October 14, 2004. On June 3, 2005, having been notified by her insurance company of the judgment, Badgley moved, pursuant to Code of Civil Procedure, section 473.5,[1]to set aside the default and vacate the judgment. Martin opposed the motion, and, following two hearings, the trial court granted the motion to set aside the default, vacated the judgment, and reset the matter. This timely appeal followed.

STANDARD OF REVIEW

A motion to vacate a default and set aside [a] judgment ( 473) is addressed to the sound discretion of the trial court, and in the absence of a clear showing of abuse . . . the exercise of that discretion will not be disturbed on appeal. [Citations.] The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. [Citation.] (Anastos v. Lee (2004) 118 Cal.App.4th 1314, 1318-1319 (Anastos).) The burden of showing abuse of discretion rests on the appellant. (Slusher v. Durrer (1977) 69 Cal.App.3d 747, 754.)

The Trial Court Did Not Abuse Its Discretion In Granting The Motion

When judgment is entered by default, defendant is deprived of the right to a trial. The long-standing policy of California law, however, favors resolution of matters on their merits. As a result, appellate courts are much more disposed to affirm an order when the result is to compel a trial upon the merits than it is when the judgment by default is allowed to stand, and it appears that a substantial defense could be made. [Citations.] (Thompson v. Sutton (1942) 50 Cal.App.2d 272, 276.)

This principle is not unlimited, however. Relief need not be granted in every instance in which the defendant denies receiving actual notice, if there is evidence that the defendant did in fact have an opportunity to defend, and failed to, or where defendant evaded service:

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. ( 473.5 subd. (a).) Such a motion must be filed within two years of entry of the judgment; if timely filed, the court may grant the motion on a finding that the lack of actual notice was not caused by defendants avoidance of service or excusable neglect. ( 473.5 subd. (c).)

In Anastos, supra, plaintiff alleging injuries arising from a motor vehicle accident asserted, as does Martin, that she was unable to locate defendants and obtained an order permitting service by publication. After default judgment was entered, defendants filed a motion pursuant to section 473.5; the court denied the motion because defendants failed to establish that any lack of notice was not due to avoidance of service or inexcusable neglect. (Anastos, supra, 188 Cal.App.4th at p. 1319.) On appeal, that result was affirmed.

Here, in contrast, defendant produced evidence at two hearings that she resided at all relevant times at the address listed on the accident report. While Martin asserts that the testimony should not be believed, the trial court is the trier of fact, and the determination of the credibility of witnesses is within its purview, not ours.[2] Moreover, Badgley has made a sufficient showing that she has a good defense, based on the filing of her answer. (Rosenthal v. Garner (1983) 142 Cal.App.3d 891, 898.) In response to that evidence, Martin made no showing that granting relief from default would cause her any prejudice; in the absence of such a showing, it was a proper exercise of the courts discretion to resolve any doubts in favor of a result which permits a trial on the merits. (Ibid.; Brockman v. Wagenbach (1957) 152 Cal.App.2d 603, 615.)

DISPOSITION

The trial courts order vacating the default and judgment is affirmed and the matter is remanded for further proceedings. Respondent is to recover her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ZELON, J.

We concur:

PERLUSS, P. J. JOHNSON, J.

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Property line Lawyers.

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

[2] Martin also objects to the admission of the documentary evidence on the grounds that it was not properly authenticated. (Evid. Code, 1400, 1401.) The trial court properly admitted the documents based on the affidavits presented by Badgley (Evid. Code, 1413); even had the trial court erred, the other evidence was sufficient to support the findings that there had been no avoidance of service or actual notice in time to defend the case.