CIV468108 ROBERT N. WOODWARD VS. TUILATAI SEVELO

CYNTHIA S. SIEVERT ABDUL LECKY
SHAWN R. PARR

MOTION OF DEFENDANT TUILATAI SEVELO TO SET ASIDE DEFAULT AND VACATE DEFAULT JUDGMENT TENTATIVE RULING:

The Motion of Defendant Tuilatai Sevelo (“Defendant”) to Set Aside Default and Vacate Default Judgment is DENIED without prejudice to bringing a separate lawsuit to set aside the judgment.

There is no time limit on a motion for relief under Code of Civil Procedure section 473 where it is clear from the face of the record that the judgment should not have been entered; however, a judgment valid on its face but void for improper service is governed by analogy to Code of Civil Procedure section 473.5 and therefore relief in the same action must be sought no later than 2 years after entry of the default judgment. (See Rogers v Silverman (1989) 216 Cal.App.3d 1114, 1121-1122.) Defendant contends here that the judgment is void because he was not properly served, but even if true, this is not established on the face of the record. As such, since judgment was entered in this action in 2009, this motion filed on July 24, 2019, is untimely. However, there is no time limit to bringing a separate action to attack the judgment on this ground. (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.)

Defendant also argues that aside from any statutory authority, the court has inherent equitable power to set aside the judgment on the ground of extrinsic fraud or mistake. “The essence of extrinsic fraud is one party’s preventing the other from having his day in court.” (City and County of San Francisco v. Cartagena (1995) 35 Cal.App.4th 1061, 1067.) Defendant’s evidence is insufficient to show extrinsic fraud by Plaintiffs that prevented Defendant from having his day in court. Defendant contends that Plaintiffs served Defendant at an incorrect address in Hillsborough rather than Defendant’s residence in Foster City. However, even if true, it is not clear that this rises to the level of fraud by Plaintiffs rather than merely service at an incorrect address. Indeed, the declaration of John Maka admits that Maka misrepresented himself as Defendant, and that Maka lived at the Hillsborough address. (See Maka Decl.) Moreover, Defendant offers no explanation for why he did not receive any of the documents sent by Plaintiffs to his Foster City address in 2008 and 2009. (See Plaintiff’s Request for Judicial Notice, Exhs. 4-11.) Such documents should have put Defendant on notice of this action, even though it would not establish proper service of the summons and complaint. Yet Defendant claims he never received notice of this lawsuit until May 2019 when he received the Earnings Withholding Order. (See Defendant’s Decl. ¶ 3.) Based on the above, the court finds insufficient evidence at this time to exercise its equitable power to vacate the default judgment based on extrinsic fraud.

A court may also vacate a default on the equitable ground of extrinsic mistake when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.) Extrinsic mistake is found where a mistake led a court to do what it never intended. (Ibid.) Defendant also has not sufficiently established extrinsic mistake here.

This denial is without prejudice to bringing a separate action to attack the default judgment on the above grounds. (See e.g., Sipe v. McKenna (1948) 88 Cal.App.2d 1001 [holding the complaint stated facts sufficient to constitute a cause of action in equity to set aside a judgment on the ground of extrinsic fraud].)

Defendant’s Request for Judicial Notice is DENIED as to Exhibit A, and GRANTED as to the remaining documents.

Plaintiffs’ Request for Judicial Notice is GRANTED.