Aimers v. Moshiri
In a prior action, Al Moshiri sued Albert Aimers and iLive, Inc., the corporation Aimers chaired. A default judgment was entered against Aimers as a terminating sanction. He moved to vacate the judgment on the grounds of extrinsic fraud or mistake. The superior court denied the motion. Aimers appealed. In an unpublished opinion, Court affirmed, rejecting Aimerss argument that the motion should have been granted (Moshiri v. Aimers (Dec. 23, 2005, B182836)). Court conclude that the demurrer should have been overruled and therefore reverse. The denial of the prior motion to vacate the default judgment did not preclude an independent action in equity seeking the same relief. Where, as here, extrinsic fraud or mistake is asserted, a motion is not an adequate means of resolving the contentions of the former defendant, and a subsequent action is permitted so that discovery may be taken and oral testimony presented on the issue.
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