Case Name: Sherry Seitzinger aka Sherry Ross v. Richard M. Ladden

Case No.: 17CV313092

Defendant’s Motion for Judgment on the Pleading

Factual and Procedural Background

On March 18, 2014, defendant Richard M. Ladden (“Ladden”) filed a lawsuit against plaintiff Sherry Seitzinger aka Sherry Ross (“Seitzinger”) asserting a claim for malicious prosecution (“Underlying Action”). (Complaint, ¶3.)

Ladden purportedly served Seitzinger with summons and complaint in the Underlying Action on April 23, 2014 by substitute service on an individual named Dan Martin, 55 years old with gray hair, 5’8” and 170 pounds, the occupant at 7392 Crews Road in Gilroy. (Complaint, ¶4.) However, service of process did not occur as described. (Complaint, ¶5.) The address above is the home of Seitzinger’s son, Daniel Seitzinger, but he was not at home at the time of purported service and nobody was present to receive copies of the summons and complaint. (Id.) At the time of purported service, Daniel Seitzinger was 6’0”, 250 pounds, 47 years old with dark blond hair which does not match the process server’s description. (Complaint, ¶6.) Seitzinger never received copies of the summons and complaint by personal delivery or substitute service. (Complaint, ¶10.)

On July 21, 2014, default judgment was entered in the Underlying Action. (Complaint, ¶11.) Seitzinger first learned of the Underlying Action when default judgment had been entered against her. (Complaint, ¶13.)

On July 14, 2017, plaintiff Seitzinger filed the instant action against defendant Ladden asserting causes of action for:

(1) Independent Action in Equity to Set Aside and Vacate Judgment for Lack of Personal Jurisdiction
(2) Independent Action in Equity to Set Aside and Vacate Judgment for Extrinsic Fraud or Mistake
(3) Independent Action in Equity for Violations of the California and Federal Constitutions

On November 6, 2017, defendant Ladden filed his answer to plaintiff Seitzinger’s complaint.

On July 6, 2018, defendant Ladden filed the motion now before the court, a motion for judgment on the pleadings.

I. Ladden’s motion for judgment on the pleadings is GRANTED, in part.

“A party may move for judgment on the pleadings.’ (Code Civ. Proc., §438, subd. (b)(1).) “The motion provided for in this section may only be made on one of the following grounds: … If the moving party is a defendant, that either of the following conditions exist: … The complaint does not state facts sufficient to constitute a cause of action against that defendant.” (Code Civ. Proc., §438, subd. (c)(1)(B)(ii).)

“A motion for judgment on the pleadings is the equivalent of a general demurrer but is made after the time for demurrer has expired. The rules governing demurrers apply. [Citation.] The grounds for a motion for judgment on the pleadings must appear on the face of the challenged complaint or be based on facts which the court may judicially notice. [Citations.]” (Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 548.)

Despite acknowledgment of these rules governing a motion for judgment on the pleadings, Ladden contends the allegations made by plaintiff Seitzinger should not be accepted as true and that, instead, the court should find that service of the summons and complaint in the Underlying Action was properly made on Seitzinger. Ladden relies first upon Evidence Code section 647 which provides, “the return of a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.” Ladden contends this evidentiary presumption trumps the rule that facts alleged in a complaint are accepted as true.

However, Ladden provides no legal authority to support this contention. Evidence Code section 604 states that the effect of a presumption affecting the burden of producing evidence is that the trier of fact is required to assume the existence of the presumed fact “unless and until evidence is introduced which would support a finding of its nonexistence.” When the opposing party (here, Seitzinger) produces evidence casting doubt on the truth of the presumed fact, the other party (here, Ladden) is no longer aided by that presumption. (Rancho Santa Fe Pharmacy, Inc. v. Seyfert (1990) 219 Cal.App.3d 875, 882.) The key point to note, however, is that the evidentiary presumption affects the burden of production when the evidence is considered by a trier of fact. A motion for judgment on the pleadings is not an evidentiary hearing and the court’s role does not involve weighing or resolving evidentiary disputes.

Alternatively, Ladden contends the court may look to extrinsic facts as a corollary to the rule that allows a court to consider a prior pleading to disregard sham pleadings. In Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 384 (Owens), the court wrote:

It is axiomatic that the function of a demurrer is to test the legal sufficiency of the pleading by raising questions of law. [Citation.] It is also well established that, when reviewing a judgment entered following the sustaining of a demurrer without leave to amend, the appellate court must assume the truth of the factual allegations of the complaint. (Ibid.) However, an exception exists where a party files an amended complaint and seeks to avoid the defects of a prior complaint either by omitting the facts that rendered the complaint defective or by pleading facts inconsistent with the allegations of prior pleadings. [Citations.] In these circumstances, the policy against sham pleading permits the court to take judicial notice of the prior pleadings and requires that the pleader explain the inconsistency. If he fails to do so the court may disregard the inconsistent allegations and read into the amended complaint the allegations of the superseded complaint.

(Emphasis added.)

If a court is allowed to consider a prior complaint, Ladden contends the court should similarly be allowed to consider prior judicial acts by plaintiff Seitzinger. Ladden cites no legal authority for the existence of such a corollary. The Owens court affirms that the court looks at prior pleadings on the basis that the prior pleading is subject to judicial notice. Here, Ladden asks the court to take judicial notice of the truth of statements made in court records in the Underlying Action in order to dispute the allegations made in the present action.

Evidence Code section 452, subdivision (d) states that the court may take judicial notice of “[r]ecords of any court of this state.” This section of the statute has been interpreted to mean that the trial court may take judicial notice of the existence of the court’s own records. Evidence Code section 452 and 453 permit the trial court to “take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments—but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.” (People v. Woodell (1998) 17 Cal.4th 448, 455.) Ladden is not asking this court to take judicial notice of the existence of court documents, but rather the truth of matters asserted therein. Since the court documents referenced are not orders, statements of decisions, or judgments, Ladden’s request for judicial notice is improper and is, for that reason, DENIED.

For the same reason, Ladden’s assertion that the doctrine of unclean hands applies to bar Seitzinger’s claims is rejected. Ladden is asserting an affirmative defense applies to defeat Seitzinger’s claims. “A general demurrer may lie because the complaint alleges either too little, or too much: i.e., it can be used where … plaintiff has included allegations that clearly disclose some defense or bar to recovery (without ‘pleading around’ the defense).” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2018) ¶7:49, pp. 7(I)-30 to 7(I)-31 citing Cryolife, Inc. v. Superior Court (2003) 110 Cal.App.4th 1145, 1152, et al.) The complaint here does not disclose unclean hands as a defense. Such a defense relies on facts extrinsic to the pleading or on matters which are not the proper subject of judicial notice.

Ladden argues further that relief is not available to Seitzinger because she failed to act with diligence. By her own allegations, Seitzinger learned of the Underlying Action when default judgment had been entered against her on July 21, 2014. (Complaint, ¶¶11 and 13.) Ladden cites to Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1183–1184 (Stafford) to argue that a three month delay is too long.

Where a party has filed a motion for relief after an extended delay without any adequate excuse therefor, it is an abuse of discretion for a trial court to grant relief under section 473. (Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523 [190 P.2d 593] (Benjamin).) In Benjamin, our Supreme Court found that the trial court abused its discretion when it set aside a default judgment because a defendant’s section 473 motion had not been filed within a ”reasonable time“ where the defendant’s attorney, without explanation, delayed for more than three months in filing the motion after learning of the entry of default. (31 Cal.2d at pp. 531-532.) The court found that, even though there was a separate reasonable ground to excuse the defendant’s conduct to the point of entry of default judgment (his secretary failed to forward the summons and complaint to his attorney), the defendant’s attorney took no action to set aside the default judgment until three months after he became aware of the judgment. Because the defendant’s attorney gave no excuse for the three-month delay, the court held that the trial court had abused its discretion and consequently reversed the trial court’s grant of relief. (Id. at pp. 532-533.)

Ladden’s reliance on Stafford is misplaced as that involved a motion for relief pursuant to Code of Civil Procedure section 473 explicitly requires the relief to be sought “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., §473, subd. (b).) Here, on the other hand, Seitzinger is making a collateral attack and/or seeking equitable relief. “The statutory time limits on relief under CCP §473(b) or §473.5 … do not apply.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2018) ¶5:436, p. 5-124.) “A judgment void on its face because rendered when the court lacked personal or subject matter jurisdiction or exceeded its jurisdiction in granting relief which the court had no power to grant, is subject to collateral attack at any time.” (Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1239; see also Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2018) ¶5:490, p. 5-138.)

Finally, Ladden argues Seitzinger’s complaint fails because she has not adequately pleaded that she has a meritorious defense. A plaintiff seeking to set aside default based upon extrinsic mistake must demonstrate a meritorious case.

We note that a trial court retains discretion to vacate a default on equitable grounds, even if statutory relief is unavailable. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981, 35 Cal.Rptr.2d 669, 884 P.2d 126.) “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.” (Ibid.) But for a party to qualify for such equitable relief on this basis, courts have developed a three-part test: first, the defaulted party must demonstrate it has a meritorious case; second, it must articulate a satisfactory excuse for not presenting a defense to the original action; and third, the moving party must demonstrate diligence in seeking to set aside the default once it was discovered. (Cruz v. Fagor America, Inc., supra, 146 Cal.App.4th at p. 503, 52 Cal.Rptr.3d 862.)

(Lee v. Ji Hae An (2008) 168 Cal.App.4th 558, 566.)

In opposition, Seitzinger contends she need not demonstrate a meritorious case in order to set aside default based upon lack of personal jurisdiction. “Where a person has been deprived of property in a manner contrary to the most basic tenets of due process, ‘it is no answer to say that in his particular case due process of law would have led to the same result because he had no adequate defense upon the merits.’ [Citation.]” (Peralta v. Heights Medical Center, Inc. (1988) 485 U.S. 80, 86–87.) Seitzinger’s argument applies only to her first cause of action to set aside the default based upon lack of personal jurisdiction. Seitzinger’s second and third causes of action seek to set aside default based upon extrinsic fraud or mistake. As such, Seitzinger should be required to plead a meritorious defense to the second and third causes of action.

Accordingly, Seitzinger’s second and third causes of action do not state facts sufficient to constitute a cause of action against Ladden. Ladden’s motion for judgment on the pleadings as to the second and third causes of action in Seitzinger’s complaint is GRANTED with 10 days’ leave to amend. Ladden’s motion for judgment on the pleadings is otherwise DENIED.