Case Number: 08K03502 Hearing Date: May 05, 2014 Dept: 77

Defendant Wilma Sharpe’s Motion to Set Aside Default and Default Judgment is DENIED. CCP § 473 et seq.

The Court has broad discretion to vacate the entry of default, default judgment or a dismissal, but that discretion can be exercised only if the party establishes a proper ground for relief, by the proper procedure and within the set time limits. In addition to any other ground for vacating a default judgment, the court has power to set aside a judgment that is void as a matter of law. CCP § 473(d). Also, equitable relief from a default judgment can be sought at any time on the ground of “extrinsic fraud or mistake.” Olivera v. Grace (1942) 19 Cal.2d 570, 576. There are three essential requirements to obtain relief. The party in default must show: (1) a meritorious defense; (2) a satisfactory excuse for not presenting a defense to the original action; and (3) diligence in seeking to set aside the default once it was discovered.

Per Rappleyea v. Campbell (1994) 8 Cal.4th 975, “after six months from entry of default, a trial Court may still vacate a default on equitable grounds even if statutory relief is unavailable. The Court reviews a challenge to a trial Court’s order denying a motion to vacate a default on equitable grounds as the Court would a decision under CCP § 473: for an abuse of discretion. One ground for equitable relief is extrinsic mistake–a term broadly applied when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits. Extrinsic mistake is found when (among other things) a mistake led a Court to do what it never intended.” Relief is generally available only for extrinsic fraud or mistake. But these terms are given a broad interpretation and cover almost any circumstance by which a party has been deprived of a fair hearing. Estate of Sanders v. Sutton (1985) 40 Cal.3d 607, 614. There need be no actual fraud or mistake in the strict sense.

In this case, insufficient good cause has been presented to warrant setting aside the default and default judgment based on extrinsic fraud and mistake and/or on the grounds that the judgment is void. Specifically, defendant does not state that she never lived at address on South Victoria Avenue, that she did not know a Jane Arterbury and/or that she never received any documents in the mail. See Proof of Service filed on February 23, 1998. Further, defendant does not address where she lived from 1998 to the present and/or if she received any documents regarding this case before September 2013. In this case, the defendant has used a pre-printed declaration that does not provide enough support to warrant granting this motion. This is especially true in light of the fact that the judgment is over 16 years old.

Plaintiff to give notice.