07AM03813

Oliphant Financial, LLC vs. Alyc Maselli

Nature of Proceeding: Motion to Set Aside Default

Filed By: Maselli, Alyc

Self-represented Defendant Alyc Masselli’s motion to set aside default and default judgment is denied.

Defendant moves to set aside the default and default judgment entered against her on March 2, 2009. She also seeks to quash service of summons. Defendant claims she was never served with the summons and complaint. She asserts that the subject loan was opened by her ex-husband using her name and that he was ordered to pay the loan pursuant to their marital settlement decree.

At the outset, while Defendant makes both a motion to quash and a motion to set aside, given Defendant is currently in default, the only motion that she may properly make is one to set aside the default. As Defendant’s default has been entered by the Clerk and not yet set aside, the Court has lost jurisdiction to address any action by the defaulted defendant other than a motion to vacate entry of default. (See, e.g. W. A. Rose Co. v. Municipal Court for Oakland-Piedmont Judicial Dist. (1959) 176 Cal. App. 2d 67, 72.) “[T]he entry of the default terminates [the defaulting defendant’s] rights to take any further affirmative steps in the litigation until either the default is set aside or a default judgment is entered.” (City of Riverside v. Horspool (2014) 223 Cal.App.4th 670, 681 (citing Garcia v. Politis (2011) 192 Cal.App.4th 1474, 1479; Devlin v. Kearny Mesa Amc/Jeep/Renault (1984) 155 Cal.App.3d 381, 385).) “Upon the failure of the defendant to answer the complaint within the time allowed by law, and upon the entry of default, in the absence of fraud, the right of the defendant to participate in the litigation is terminated, and the subsequent filing of an answer or demurrer on his part is unauthorized and void, unless upon proceedings duly had, the default is first set aside. . . .” (Forbes v. Cameron Petroleums, Inc. (1978) 83 Cal.App.3d 257, 262-63 (citing cases).) Where “defendants’ default had already been entered, they had no standing to file any responsive pleading without first obtaining relief from the default.”

Defendant cites to numerous grounds for relief, including CCP § 473.5, Civil Code § 1788.61, and 473(d).

First, the Court must note that the subject judgment was renewed in 2018. However, Defendant made no request to vacate the renewal. Even if she had done so, the request would be untimely. “The renewal of a judgment pursuant to this article may be vacated on any ground that would be a defense to an action on the judgment, including the ground that the amount of the renewed judgment as entered pursuant to this article is incorrect.” (CCP § 683.170(a).) A motion to vacate a renewal must be made no later than 30 days after service of the notice of renewal. (CCP § 683.170(b).) As seen from Plaintiff’s opposition, the notice of renewal was mailed to Defendant in March 2018. The instant motion, even if construed to include a request to set aside the renewal, was made more than a year after notice of renewal was served and is untimely.

In addition, the motion to set aside the default and default judgment is untimely under all of the applicable statutes. A motion seeking relief pursuant to CCP § 473.5 shall be served and filed within a reasonable time not to exceed the earlier of two years after entry of a default judgment or 180 days after service of written notice that a default or default judgment has been entered. (CCP § 473.5(a).) The instant motion was made over ten years after entry of default judgment. The motion to set aside pursuant to CCP § 473.5 is therefore untimely.

The motion is also untimely to the extent it was made pursuant to CCP § 473(d). “Where a party moves under section 473(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. Kenny (2010) 187 Cal.App.4th 175, 180 [citing 8 Witkin Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial Court, § 209, pp. 814 -815.]) “A void judgment’s invalidity appears on the face of the record, including the proof of service.” (Id. at 181.) “Whether a proof of service is void does not depend on evidence outside the face of the record.” (Id. at 182.) Here, whether the judgment is void for lack of proper service depends on evidence outside the face of the record and thus the motion pursuant to CCP § 473(d) is governed by a two year time limit and as a result is also untimely.

The motion is also untimely under Civil Code § 1788.61. Under Civil Code § 1788.61 where service of summons has not resulted in actual notice in time to defend in an action by a debt buyer and a default or default judgment has been entered, a motion to set aside may be filed within the earlier of six years after entry of default or default judgment or 180 days of the first actual notice of the action. (Civ. Code § 1788.61(a)
(1)-(2).)

Defendant does also cite to the Court’s inherent equitable powers as a basis to set aside. There is no time limit with respect to a motion premised on the Court’s inherent power. A party may seek relief where he or she can show “that extrinsic fraud or mistake exists, such as a falsified proof of service, and such a motion may be made at any time, provided the party acts with diligence upon learning of the relevant facts.” ( Trackman v. Kenney (2010) 187 Cal. App.4th 175, 181.) Unlike the analysis under §473(d), the presence of extrinsic fraud or mistake “generally hinge[s] on evidence about the method of purported service.” (Id.) Indeed, “extrinsic fraud occurs when a party is deprived of the opportunity to present his claim or defense to the court is deprived of the opportunity to present his claim or defense to the court; where he was kept ignorant or, other than from his own negligence, fraudulently prevented from fully participating in the proceeding.” (Spom v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1300.) Extrinsic fraud or mistake “encompass almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing.” (Marriage of Park (1980) 27 Cal.3d 337, 342.)

While a motion pursuant to the Court’s inherent equitable powers may be timely, Defendant has failed to demonstrate that she is entitled to relief. Defendant’s argument to set aside the default and default judgment is that she was never served with the summons and complaint. The subject proof of service indicates that Defendant was personally served at 3301 Marina Cove Cir. in Elk Grove on May 6, 2007 by a registered process server. Evidence Code § 647 provides a presumption of valid service and that service was proper. The return of process or notice, made by a registered process server (see California Business and Professions Code §22350 et seq.), “establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.” (California Evidence (Ev.C) §647; see Palm Properties Inv., LLC v. Yadegar (2011) 194 C.A.4th 1419, 1427 [in unlawful detainer action, exclusion of landlord’s proof of service on hearsay grounds was error; where service is carried out by registered process server, Ev.C. 647 eliminates necessity of calling process server as witness in unlawful detainer actions as in other actions]). As explained in Evidence Code section 604, “[t]he effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption.” The only evidence provided by Defendant that she was not served with the summons and complaint is her statement in her declaration that she “was not at the property at this date and time due to staying with my parents at their home, because of my and other surgeries in the family.” (Maselli Decl. ¶ 5.) No further detail is provided in her declaration. She does indicate in her opposition memorandum that she had “major surgery in March 2007” and that her mother had brain surgery, but these vague statements, standing alone, are insufficient to overcome the presumption of service. While she also points out that the proof of service does not contain a physical description of the person served, this is not evidence that she was not served.

While not relevant to the Court’s core determination, Plaintiff points out in Opposition that upon entry of default judgment, defendant’s Request for Entry of Judgment was served on Maselli on March 2, 2009. In 2011, it is noted that the County Recorder’s Notice of Involuntary Lien was sent to defendant. In March of 2018, upon renewal of the judgment, defendant received notice. Yet, the Declaration of defendant only states that she learned of the lawsuit “on or around 5/24/19.” (Motion to Set Aside, p. 9.) The credibility of the testimony offered by the parties is properly determined by the trier of fact, and its determination is binding on an appellate court if supported by substantial evidence. (Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622-623; see also Falahati v. Kondo (2005) 127 Cal. App. 4th 823, 828. [it is “the province of the trial court to determine the credibility of the declarants and to weigh the evidence.”])

The Court concludes that Defendant has failed to overcome the presumption of proper service and thus failed to demonstrate that she was not served with the summons and

complaint.

The motion is denied.

This minute order is effective immediately. No formal order pursuant to CRC rule 3.1312 or other notice is required.