ROBERT N. WOODWARD VS. TUILATAI SEVELO

ROBERT D. AGNOLETTI, DDS, INC. ABDUL LECKY
SHAWN R. PARR

MOTION OF DEFENDANT KRISTINALISA MAKA (“DEFENDANT”) TO SET ASIDE DEFAULT AND VACATE DEFAULT JUDGMENT TENTATIVE RULING:

The Motion of Defendant Kristinalisa Maka (“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 she 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 August 7, 2019, is untimely. There is no time limit though 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 her day in court. Defendant contends that Plaintiffs served Defendant at an incorrect address in San Mateo. However, Defendant never states where she claims she did reside at the time in which such service occurred. (See Defendant’s Declaration.) The declaration from John Maka, Defendant’s father, is also silent on this issue. 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.

Lastly, in reply, Defendant offers a “Memorandum” from an investigator that Defendant claims supports that she never signed the Deed of Trust. Notwithstanding that such new evidence is improper because Plaintiffs have not had notice and opportunity to respond to it, the report is based largely on inadmissible hearsay. It also does not conclusively establish that Defendant did not sign the Deed of Trust. Further, no declaration has been provided by the investigator under penalty of perjury. For these reasons, the court has disregarded this “Memorandum.”

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].)

Both Defendant’s and Plaintiff’s Requests for Judicial Notice are GRANTED.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.