Powell v. Esquibel

Filed 8/23/07 Powell v. Esquibel CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County. R. Bruce Minto, Judge. Affirmed.

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Kenneth D. Sisco for Defendant and Appellant.

Legally Craig and Craig J. Beauchamp for Plaintiff and Respondent.

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The trial court awarded plaintiff Helen Moore Powell a $60,374.50 default judgment. Defendant Louie Esquibel appeals from the trial courts order denying his second motion to set aside the default and default judgment. Because Esquibels motion was not timely filed, we affirm the trial courts order.

BACKGROUND

Powell sued Esquibel on a personal injury claim. Her process server, Antonio Zagal, submitted a proof of service stating that he had personally served Esquibel on January 28, 2005. Esquibel did not respond to Powells complaint, and on June 2, 2005, the trial court entered a default judgment against him. Notice of entry of the default judgment was mailed to Esquibel on June 14, 2005. On October 28, 2005, Esquibel filed his first motion to set aside the default and default judgment, under Code of Civil Procedure section 473, based on excusable neglect.^[1] The trial court denied the motion on the ground that it was untimely, and Esquibel did not appeal.

On March 2, 2006, Esquibel filed a second motion to set aside the default and default judgment based on extrinsic fraud and improper service of the summons and complaint. Esquibel attached a declaration to the motion, stating that he was never properly served with the summons and complaint. Esquibel also attached a declaration from his employee, Manuel Sotelo, who stated that Zagal served the summons and complaint on him, even though he informed Zagal that he was not Esquibel. Esquibel argued that because he was never properly served, either through fraud or mistake, the court never obtained jurisdiction over him, and therefore the default and default judgment are void.

In her opposition to the motion, Powell argued that Esquibel was personally served with the summons and complaint. Powell also stated, in a declaration attached to the opposition, that on a previous occasion she had gone to Esquibels place of business to speak with him, and he denied to her that he was Esquibel. Powell explained that she knew he was in fact Esquibel, because she had met him before.

The trial court denied Esquibels motion. The court found that there was no extrinsic fraud.

DISCUSSION

In the trial court, Esquibel argued that his second motion to vacate was timely because there are no time limits for such motions if they are based on extrinsic fraud. Esquibel does not renew his extrinsic fraud argument on appeal. Instead, he now argues that his motion was timely because a judgment may be attacked at any time on the basis of evidence or facts that are uncontested by the prevailing party. (Thompson v. Cook (1942) 20 Cal.2d 564, 569.) We find Esquibels argument unpersuasive.

[W]hen a motion to vacate is made on the ground that the default judgment is void because of improper service, the limitation period contained in Code of Civil Procedure section 473.5 applies . . . . (Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1116.) Under section 473.5, such motions must be filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment . . . ; or (ii) 180 days after service . . . of a written notice that the default or default judgment has been entered. ( 473.5, subd. (a).)

On June 14, 2005, notice of entry of the default judgment was mailed to Esquibel. Esquibel did not file his second motion to set aside the default and default judgment until March 2, 2006, over eight months after the notice was mailed. Because he exceeded the 180-day time limit, the motion was untimely.

Esquibel argues, however, that a judgment may be attacked at any time if the party in favor of whom the judgment or order runs admits facts showing its invalidity, or, without objection on his part, evidence is admitted which clearly shows the existence of such facts . . . . (Thompson v. Cook, supra, 20 Cal.2d at p. 569; see also Central Manufacturing District, Inc. v. Board of Supervisors (1960) 176 Cal.App.2d 850, 864.) But that rule does not apply if the claim of improper service is controverted by the plaintiff. (Thompson v. Cook, supra, 20 Cal.2d at p. 573.) Here, Esquibels declaration, in which he states that he was not personally served, does not stand uncontroverted. Powell filed a proof of service that indicates Esquibel was personally served on January 28, 2005. In her declaration, Powell attacked Esquibels credibility by stating that Esquibel had previously lied about his identity. Moreover, Powell opposed Esquibels motion during the hearing before the trial court, and there is nothing in the record indicating she admits that Esquibel was not properly served. Thus, assuming for the sake of argument that the cases Esquibel cites apply to the time limits in section 473.5, his argument still fails, because his claim of improper service does not stand unconverted.

DISPOSITION

The order denying appellants motion to set aside the default and default judgment is affirmed. Respondent shall recover her costs on appeal.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

MALLANO, Acting P. J.

JACKSON, J.^*

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^[1] All subsequent statutory references are to the Code of Civil Procedure.

^* (Judge of the L. A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.)