Filed 5/19/17 Acevedo v. Akhtar CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



VICTOR RAMIREZ ACEVEDO,

Plaintiff and Respondent,

v.

NASEEM AKHTAR et al,

Defendants and Appellants.


E064057

(Super.Ct.No. CIVDS1200532)

OPINION


APPEAL from the Superior Court of San Bernardino County. Donald R. Alvarez, Judge. Affirmed.
Law Offices of Zulu Ali, Zuli Ali and Maleha Khan-Avila for Defendants and Appellants.
No appearance for Plaintiff and Respondent.
Defendants and appellants Naseem Akhtar, Mahmood Arif, Singh Variyam, and Ghulam Sarwar (defendants) filed a motion to vacate the default and judgment entered against them by plaintiff and respondent Victor Ramirez Acevedo. The trial court denied defendants’ motion. Defendants contend the trial court erred because (1) their motion was timely; (2) they presented sufficient evidence of fraud or mistake; and (3) the complaint failed to provide sufficient notice due to three names being incorrect on the complaint. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. COMPLAINT
On January 19, 2012, Acevedo filed a complaint against defendants. In the complaint, defendants names are listed as: (1) Akhtar Naseem, (2) Mahmood Arif, (3) Singh Varityam, and (4) Sarmar Ohulam. The causes of action are breach of contract and fraud. The complaint seeks damages in the amount of $444,000.
Acevedo alleged he entered into a contract with defendants, in which defendants agreed to sell Acevedo a nightclub in Redlands. Acevedo asserted defendants agreed to continue paying the $12,000 per month mortgage on the nightclub, but did not make the payments, which will result in Acevedo having to close the nightclub.
B. PROOFS OF SERVICE
On April 20, 2012, four proofs of service were filed reflecting defendants were personally served with the complaint at 8191 Fletcher Parkway in La Mesa, on February 17. The proofs of service reflect the complaint was served by Felix Alfaro, who is not a registered process server. Alfaro signed the proofs of service, and marked the box reflecting he was a California sheriff or marshal.
C. DEFAULT JUDGMENT
On March 20, 2013, the trial court entered a default judgment against defendants. Trial was scheduled for March 20, and defendants did not appear. The court entered a judgment in favor of Acevedo. The court awarded damages in the amount of $376,294.89 and costs in the amount of $510 for a total amount of $376,804.89.
D. MOTIONS TO SET ASIDE
On May 24, defendants attempted to file a motion to set aside the default judgment, but it was rejected because defendants failed to reserve a hearing date. On June 17, defendants again attempted to file a motion to set aside the default judgment, but it was rejected because Ghulam Sarwar was incorrectly included as a party—his name was not on the complaint or judgment.
E. MOTION TO QUASH
On August 23, defendants attempted to file a motion to quash, but it was rejected on September 5 because (1) defendants’ attorney did not respond to the trial court’s telephone calls; (2) the “names of defendants do not match”; and (3) “no ‘ESA’ has been attached.” (All caps. omitted.)
F. AMENDED JUDGMENT
On November 14, the trial court issued an amended judgment. The amended judgment made changes to two defendants’ names (1) Singh Varityam was changed to Singh Variyam; and (2) Sarmar Ohula was changed to Ghular [sic] Sarwar.
G. MOTION TO SET ASIDE
On February 24, 2014, defendants filed a motion to set aside the default and judgment. In the motion to set aside, defendants asserted they first learned of Acevedo’s lawsuit when they were given notice of the entry of judgment. Defendants requested the court set aside the default and judgment due to defendants not having actual notice of the lawsuit.
The trial court heard the motion on March 25. Acevedo argued the motion was tardy due to being filed almost one year after entry of the default judgment. Defendants asserted they were late because Ghulam Sarwar was abroad “in June or July or September.” When he returned to America, defendants’ filings were rejected because the court clerk’s office stated defendants needed to file a substitution of attorney; defendants disagreed because no appearance had been made. When defendants filed a substitution of attorney, it was rejected because no appearance had been entered. Defendants asserted “some sort of substitution” was entered in late 2013. Defendants contended the delay was caused by the court clerk’s office erroneously seeking a substitution of attorney.
The trial court concluded defendants did not act reasonably in seeking to have the default and judgment set aside. The court noted that after the judgment was amended, so defendants’ correct names were listed, defendants waited three months to file the motion to set aside. The trial court found defendants’ delay was unreasonable and that they failed to establish lack of actual notice of the lawsuit.
H. MOTION FOR RECONSIDERATION
On April 2, defendants filed a motion for reconsideration. Defendants hired a new attorney who blamed the prior attorney for any lack of diligence. Defendants asserted the trial court could have granted their motion to set aside and imposed sanctions.
The trial court held a hearing on the motion for reconsideration on August 7. Acevedo asserted defendants had a good case against their prior counsel, but not for relief from the default. The trial court concluded no new facts or law were presented in the motion. The trial court found the motion for reconsideration was actually a renewal of the motion to set aside the default and judgment.
The trial court asserted that even if the prior counsel were to blame for various delays, there were proofs of service reflecting defendants were served with the complaint. Defendants asserted the service occurred at a grocery store owned by defendants. While it is possible one or two defendants were present, it was likely the service was made upon a store manager. The trial court said it saw nothing in the declarations indicating defendants were not present at the address where the service was accomplished at the time service was accomplished. Acevedo asserted defendants’ argument about improper service should have been raised previously, because it was not new information to defendants. The trial court denied defendants’ motion for reconsideration.
I. MOTION TO VACATE
On August 19, 2014, defendants filed a motion to vacate the default and judgment. (Code Civ. Proc., § 473, subd. (d).) Defendants asserted they became aware of the default in March 2013. Defendants alleged they tried to file a motion to set aside the judgment, which was rejected by the trial court due to defendants’ failure to reserve a hearing date. Defendants recounted other attempted filings subsequent to March 2013 that were rejected for various reasons.
Defendants asserted there were several errors in the complaint and service of the complaint that required the default judgment to be vacated: (1) upon information and belief, Alfaro is not a sheriff or marshal; (2) three of defendants’ names were incorrect on the complaint—(a) Singh Varityam should have been Singh Variyam, (b) Akhtar Naseem should have been Naseem Akhtar, and (c) Sarmar Ohula should have been Ghulam Sarwar; and (3) only one of the four defendants, Singh Variyam, was at the 8191 Fletcher Parkway location where the complaints were allegedly served.
Defendants argued they were not served. Defendants also argued Alfaro misrepresented himself as a sheriff or marshal, which impacted his credibility concerning his claim that he personally served defendants.
Exhibits were attached to the motion: (A) the summons and complaint reflecting Acevedo’s lawsuit; (B-E) the four proofs of service; (F) the request for entry of default judgment; (G) the judgment; (H) an amendment to the judgment and complaint changing the name Sarmar Ohula to Ghulam Sarwar; (I) a declaration of Miguel Marquez declaring he was hired to go to Alfaro’s address, which was listed on the proofs of service, where he spoke to a person other than Alfaro and learned “Alvarado [sic] owned and operated a paralegal service at the location and he was not a Sheriff or Marshal”; (J-M) declarations by the four defendants reflecting they were not personally served with the complaint or summons and learned of the case after the default judgment was entered; and (N) a cross-complaint by defendants that was faxed to the trial court on August 19, 2014.
J. OPPOSITION
Acevedo opposed the motion to vacate. Acevedo asserted defendants did not bring the motion within a reasonable amount of time—that 17 months was too long a time period. Acevedo asserted the complaints were left at defendants’ place of business, which is a market in San Diego County. Acevedo argued defendants did not all need to be personally present in order to be served at their place of business. Further, Acevedo asserted the issue of proper service had already been litigated as part of defendants’ motion to set aside the default, which was denied in March 2014.
K. REPLY
Defendants replied to Acevedo’s opposition. Defendants asserted their motion was timely because they had been diligent. Defendants noted they attempted to file a motion to set aside the default judgment in May 2013. Defendants then recounted the various other filings that were rejected by the trial court. Defendants asserted there was no time limit for filing a motion to vacate a default judgment, and that a lack of personal jurisdiction permits a judgment to be vacated at any time.
L. HEARING
On May 28, 2015, the trial court held a hearing on the motion to vacate. Defendants argued (1) the proofs of service were defective because Alfaro was not a sheriff or marshal; (2) the complaint constituted fraud on the court because it alleged the parties had an oral contract when they had a written contract; and (3) there is no time limit for filing a motion to vacate based upon improper service of process.
Acevedo asserted this was defendants’ “third bite at the apple,” following a motion to set aside and a motion for reconsideration. Acevedo argued the issue had been previously litigated, and the motion to vacate was not brought within a reasonable period of time.
M. RULING
On July 10, 2015, the trial court issued a written ruling. The trial court concluded there was a time limit for seeking to have a default judgment set aside as void. (§ 473.5.) The law provided that a motion to set aside a default judgment “shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.” (§ 473.5, subd. (a).)
The trial court concluded the 180-day limit did not apply in this case. The court determined that while the motion to vacate was filed within the two year time limit, defendants’ months of delay was unreasonable. The trial court also found the primary difference between the motion to vacate and defendants’ prior motions was the information about Alfaro/Alvarado being a paralegal. The court found defendants failed to explain why they did not investigate that issue sooner.
In regard to the incorrect names on the complaint and summonses, the court found defendants failed to provide legal authority reflecting a judgment is void when names are spelled incorrectly. Additionally, the court found defendants failed to provide evidence reflecting they were unaware of the judgment due to the misspellings. The trial court denied defendants’ motion to vacate the default judgment.
DISCUSSION
A. TIMELINESS OF THE MOTION TO VACATE
1. CLERK ERRORS
Defendants contend the trial court erred by denying their motion to vacate because the delays in seeking relief from the default were caused by the trial court clerk’s office, i.e., the delays were not caused by defendants.
A motion to vacate a judgment must be filed within a “reasonable time.” (§§ 473, subd. (b), 473.5, subd. (a); Lee v. Wells Fargo Bank, N.A. (2001) 88 Cal.App.4th 1187, 1200.) “The ruling on a motion to vacate will only be disturbed on appeal where there is a clear showing of abuse of discretion and a manifest miscarriage of justice. [Citation.] The test for abuse of discretion is ‘whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’” (Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1283.)
The default judgment was entered on March 20, 2013. Defendants’ first attempt to file a motion to set aside, on May 24, was rejected because defendants failed to reserve a hearing date. On June 17, defendants again attempted to file a motion to set aside the default judgment, which was rejected because defendants incorrectly included Ghulam Sarwar as a party when such a name did not appear on the complaint or judgment.
On August 23, defendants attempted to file a motion to quash, which was rejected on September 5 because (1) defendants’ attorney did not respond to the trial court’s telephone calls; (2) the “names of defendants do not match”; and (3) “no ‘ESA’ has been attached.” (All caps. omitted.)
An amended judgment with the correct names of two defendants was issued on November 14, 2013. Defendants successfully filed a motion to set aside the default and judgment on February 24, 2014. That motion was denied on March 25. Defendants’ motion for reconsideration was filed on April 2, and denied on August 7. Defendant’s motion to vacate was filed on August 19, 2014, and denied on July 10, 2015.
Defendants assert the clerks’ office caused a delay because it required a substitution of attorney to be filed. Any confusion in the court clerk’s office over the substitution of attorney and lack of first appearance is not cited as a reason for rejecting defendants’ documents in the register of actions. The register of actions reflects defendants’ documents were rejected because defendants failed to reserve a hearing date, because defendants did not match the parties’ names on their motions, because defendants did not return telephone calls from the court clerk’s office, and because defendants did not attach a “ESA” to the motion to quash.
To the extent “ESA” refers to a substitution of attorney, there were two other reasons for rejecting the motion to quash—failure to include matching names and failure to respond to the court’s telephone calls. Therefore the substitution of attorney requirement was not the sole reason for the delay in the case. The period of not filing anything from approximately October 2013 until February 2014 cannot be blamed entirely on the trial court clerk.
Defendants assert they were delayed by the trial court clerk not notifying them that the August 23, 2013, motion to quash was rejected. Defendants do not cite a declaration or any other evidence to support the allegation that they were not notified of the rejection. The rejection appears in the trial court’s register of actions and reflects the document was rejected on September 5, in part, because defendants’ attorney did not respond to the trial court’s telephone calls. Therefore, the record does not support defendants’ assertion that they had no notice of the rejection—the record reflects the trial court called defendants’ attorney but the attorney did not respond.
Additionally, defendants assert they were delayed because Acevedo did not notify defendants of his application to amend the judgment, and the trial court did not notify defendants of the amended judgment. Again, defendants do not cite to a declaration or other evidence to support their allegation that they did not receive service of the application and amended judgment. The record supports a finding that defendants received the application. The record includes a proof of service reflecting the application was served on all four defendants and defendants’ attorney.
The trial court could reasonably find the major delays in the case were caused by defendants, not the court clerk, due to defendants’ errors in the documents they attempted to file and defendants’ slowness in remedying the errors. Given that defendants did not successfully file a motion to set aside until nearly one year after the default judgment was entered, and all of defendants’ arguments pertained to information that was available and/or accessible in March 2013, the trial court could reasonably conclude defendants did not act diligently in seeking relief from the judgment. The record supports the trial court’s conclusion that defendants’ delays in seeking relief from the default were unreasonable. Accordingly, the trial court did not abuse its discretion because its decision is within the bounds of reason.
2. COURT RECITING PROCEDURAL HISTORY
Defendants contend the trial court failed to consider the procedural history of the case when ruling on the motion to vacate. Contrary to defendants’ position, the trial court provided a two-page procedural history of the case in its written ruling. The procedural history includes the default judgment, defendants’ motion to set aside, as well as defendants’ other attempts to obtain relief from default. Given that the trial court wrote about the procedural history of the case, we are not persuaded that the trial court failed to consider the procedural history of the case.
B. REMAINING ISSUES
Defendants contend the trial court erred by denying their motion to vacate because (1) they presented sufficient evidence of fraud or mistake; and (2) the complaint failed to provide sufficient notice because three defendants’ names were incorrect on the complaint.
We have concluded, ante, that the trial court did not err by denying the motion to vacate on the basis of the motion being untimely. As a result, the trial court properly denied defendants’ motion. We can provide defendants with no effective relief by reviewing these two remaining issues because we have already concluded the trial court had a proper basis for denying the motion. Therefore these two issues are moot. (City of San Jose v. International Assn. of Firefighters, Local 230 (2009) 178 Cal.App.4th 408, 417 [an issue is moot when a reviewing court cannot provide effective relief].)
DISPOSITION
The judgment is affirmed. Respondent is awarded his costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


MILLER
J.


We concur:

HOLLENHORST
Acting P. J.

CODRINGTON
J.