Pollitt v. Maginnis

Filed 5/30/06  Pollitt v. Maginnis CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION ONE

            APPEAL from an order of the Superior Court of Los Angeles County, John L. Segal, Judge.  Affirmed.

            Greines, Martin, Stein & Richland and Marc J. Poster for Plaintiff and Respondent.

            Law Offices of J. Jeffrey Morris and J. Jeffrey Morris for Defendant and Appellant.

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INTRODUCTION

            Defendant J. Patrick Maginnis appeals from the order denying his motion to set aside the default and default judgment obtained against him by plaintiff John R. Pollitt.  He contends the trial court erred in denying his motion, in that he was entitled to have the default and default judgment set aside based on defective service.  We disagree and affirm the order.

PROCEDURAL AND FACTUAL BACKGROUND

            Plaintiff sued defendant to recover damages for breach of contract and fraud in connection with a project to design and sell T-shirts at sporting events and other venues.  Plaintiff alleged that he provided $20,000 for manufacture of the T-shirts, but defendant failed to complete the project or return funds to plaintiff.  On October 21, 2002, a registered process server personally served defendant with the summons, complaint, and statement of damages.  On March 21, 2003, plaintiff served notice of request for entry of default by mail to defendant's residence at the correct address and completed the required affidavit of mailing.  Defendant's default was entered on March 24, 2003 and, on April 9, 2003, a default judgment was entered against defendant for $67,941.90.

            According to defendant, he first received notice of plaintiff's lawsuit and the default judgment against him on February 20, 2004, more than 10 months after judgment was entered.  On that date, defendant, an attorney at that time, discovered that plaintiff had served a writ of execution on another attorney who was holding attorney's fees for payment to defendant in the amount of $456,666.67.  On June 1, 2004, almost 14 months after the default judgment was entered, defendant filed a motion to set aside the default and default judgment pursuant to Code of Civil Procedure sections 473, subdivision (d),[1] and 473.5, subdivision (a),[2] as well as the equitable powers of the court.  The trial court denied the motion.

CONTENTIONS

            Defendant contends the default judgment is void for lack of personal jurisdiction and due process, in that he was never served with plaintiff's lawsuit, he was never properly served with a notice of request for entry of judgment, and service of various notices during the proceedings was defective for failure to comply with section 1013a, subdivision (1).  The judgment is not void for lack of personal jurisdiction or due process.

            Defendant further contends the judgment is void, in that it was obtained through extrinsic fraud and/or mistake due to defects in service of notices on defendant, preventing defendant from presenting his defense to the court and denying him a fair adversarial hearing.  The judgment is not void as obtained through extrinsic fraud or mistake.

DISCUSSION

Standard of Review

            A motion for relief from default and default judgment is addressed to the sound discretion of the trial court, and we will not disturb the court's ruling in the absence of a clear showing of abuse.  (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.)  All presumptions are in favor of the correctness of the trial court's ruling, and the burden is on the appellant to show abuse of discretion.  (McCreadie v. Arques (1967) 248 Cal.App.2d 39, 44-45.)  Where, as here, the trial court does not provide any reason or basis for its ruling, we will uphold it on appeal if it is correct on any basis.  (Rappleyea, supra, at p. 981; Metropolitan Culinary Services, Inc. v. County of Los Angeles (1998) 61 Cal.App.4th 935, 948.)

            We view the evidence and draw all reasonable inferences in favor of the trial court's ruling.  (Griffith Co. v. San Diego Col. for Women (1955) 45 Cal.2d 501, 508.)  Likewise, we resolve all conflicts in the evidence in favor of the trial court's ruling, presuming that the court â€