Case Name: M & I Bank, FSB v. Winokur
Case No.: 2010-1-CV-181748

On March 21, 2011, judgment by default was filed in the amount of $39,046.51 for plaintiff M & I Bank (“Plaintiff”) and against defendant Eric Winokur individually (“Winokur”) and dba Winokur Financial Groups. On April 7, 2016, defendant Winokur filed two identical motions, except one was titled “Defendants’ Motion to Set Aside Default and Vacate Judgment” and the other “Defendants’ Motion to Quash Service of Process, and Quash Abstract of Judgment.” Both motions are “brought under Code of Civil Procedure section 473(d).” Winokur asserts that he was never personally served and that the proof of service of summons is false and does not accurately describe him.
The motions pursuant to section 473, subdivision (d) are not timely.

“Where a party moves under section 473, subdivision (d) to set aside ‘a judgment that, though valid on its face, is void for lack of proper service, the courts have adopted by analogy the statutory period for relief from a default judgment’ provided by section 473.5, that is, the two-year outer limit.” (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180; see also Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 301 (stating that “[a] motion for relief from a default judgment which is alleged to be void for lack of valid service of process may be brought within two years after entry of the judgment”); see also Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444 (stating that “[a] motion to vacate a default judgment pursuant to section 473, subdivision (d) “on the ground that it is void is timely if made within a reasonable time [citation], which has been determined to be any time within two years of the entry of the judgment”); see also Schenkel v. Resnik (1994) 27 Cal.App.4th Supp. 1, 3-4.) Winokur filed the instant motions more than five years after entry of judgment.

In his memorandum, Winokur asserts that a motion to set aside the default judgment under section 473, subdivision (d) “may be vacated at any time,” citing to Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241. (See Def.’s memorandum of points and authorities in support of motion to set aside default and vacate judgment, pp.3:19-28, 4:1-4.) However, Strathvale Holdings did not concern a failure to serve; rather, there, the defendants argued that service of process upon them was void because plaintiffs failed to comply with the Hague Convention and they lacked minimum contacts with California as they were citizens and residents of Portugal. Winokur concedes that he has resided at 16594 Topping Way in Los Gatos for at least the past six years. (See Winokur decl., ¶¶ 2-3.) Clearly, Strathvale Holdings is inapposite.

Accordingly, Winokur’s assertion is without merit and the motions pursuant to section 473, subdivision (d) are untimely.
Even if the motions were timely, they are without merit.

“Once six months have elapsed since the entry of a judgment, a trial court may grant a motion to set aside that judgment as void only if the judgment is void on its face.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441; see also Ramos v. Homeward Residential, Inc. (2014) 223 Cal.App.4th 1434, 1440 (stating that “[w]here as here, a motion to vacate is made more than six months after entry of a judgment, a trial court may grant a motion to set aside that judgment as void only if the judgment is void on its face”); see also Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495-496 (stating that “[a] trial court has no statutory power under section 473, subdivision (d) to set aside a judgment that is not void: Once six months have elapsed since the entry of a judgment, ‘a trial court may grant a motion to set aside that judgment as void only if the judgment is void on its face’”).) “A judgment or order is said to be void on its face when the invalidity is apparent upon an inspection of the judgment-roll. In a case in which the defendant does not answer the complaint, the judgment roll includes the proof of service.” (Dill, supra, 24 Cal.App.4th at p.1441; see also Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 496 (stating same); see also Ramos v. Homeward Residential, Inc. (2014) 223 Cal.App.4th 1434, 1440 (stating that “[w]hen a judgment by default has been entered, the judgment-roll is limited to the summons, proof of service of the summons, complaint, request for entry of default, copy of the judgment, notice of any ruling overruling a demurrer interposed by the defendant and proof of service thereof, and, if service was by publication, affidavit for publication and order directing it”).) In determining whether a judgment is void on its face, the court does not consider any affidavits or other evidence that goes beyond the judgment roll. (See Ramos, supra, 223 Cal.App.4th at p.1440 (stating that “where a plaintiff has contested a motion to vacate a default judgment by way of affidavits or other evidence that goes beyond the judgment-roll as set forth in section 670, subdivision (a), of necessity our review goes beyond the judgment-roll”); see also Hogan v. Superior Court of California in and for City and County of San Francisco (1925) 74 Cal.App. 704, 708 (stating that “[i]n determining the question [as to whether a judgment is void on its face], we are restricted to the evidence afforded by the judgment roll”).) Here, an inspection of the proof of service does not show that the judgment is void for lack of proper service as it indicates that Winokur was indeed personally served and Winokur does not point to any particular defect in the proof of service itself that would render it facially invalid. Therefore, to the extent that Winokur asserts that the motions pursuant to Code of Civil Procedure section 473, subdivision (d) are on the ground that the judgment is void on its face, his assertions are likewise without merit.

Finally, Winokur does not move for an order that the judgment should be set aside pursuant to the Court’s inherent equity powers because it was procured by extrinsic fraud. Nowhere in Winokur’s supporting memorandum does he even mention extrinsic fraud. Regardless, even if Winokur so moved, it would be fruitless. The proof of service in the file indicates that Winokur was served personally by registered California process server Kris Vorsatz of Legal Express Limited, and he was a white male approximately 40 years old, with brown hair and blue eyes, approximately 6 feet 2 inches tall, and weighing 250 pounds. Winokur asserts that at the time of purported service, he “was 34 years old and weighed nearly 350 pounds… [and his] eyes are not blue” (Winokur decl., ¶ 3), and thus the facts on the proof of service are “falsifie[d].”

First, to grant relief under its equity power due to extrinsic fraud, it must be fraud of the moving party’s opponent—the other party or his attorney. (See Groves v. Peterson (2002) 100 Cal.App.4th 659, 665 (stating that “[t]he court may grant relief under its inherent equity power if, because of the fraud of his opponent, the aggrieved party was prevented from presenting his claim or defense to the court… [t]wo essential conditions are found in a classic case in equity which seeks to set aside a judgment: first, the judgment is one entered against a party by default under circumstances which prevented him from presenting his case; second, these circumstances result from extrinsic fraud practiced by the other party or his attorney”) (emphasis original); see also Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 314 (stating same).) Here, the lone evidence presented by Winokur demonstrates that any fraud or false or falsified facts were presented by the process server, not Plaintiff or its attorney. Further, Winokur concedes that the filing of a proof of service creates a presumption that the service was proper (see Dill, supra, 24 Cal.App.4th at p.1441), and Winokur does not adequately rebut the presumption that service was proper. Instead, Winokur merely provides his self-serving statement that he was not served—a statement that the Court does not accept. Winokur neither objects to nor addresses the statement of Plaintiff’s attorney that the request for entry of default and default judgment were mailed to Winokur in March 2011 at an address where Winokur admittedly resided, as acknowledged in his declaration. Thus, even if Winokur had established that he was not served, he has not demonstrated that he has demonstrated diligence in seeking to get the default set aside. (See Gibble, supra, 67 Cal.App.4th at p.315 (stating that “[i]n conjunction with his or her showing of ‘extrinsic fraud,’ a party seeking equitable relief from a default judgment…must demonstrate diligence in seeking to set aside the default once … discovered”); see also Cruz, supra, 146 Cal.App.4th at p.503 (stating that “[t]o set aside a judgment based upon extrinsic mistake one… must demonstrate diligence in seeking to set aside the default once … discovered”).)

For all of the above stated reasons, the motion to set aside default and vacate judgment are DENIED.

In light of this order, the motion to quash is also DENIED.

The Court will prepare the order.