Case Name:   Worldwide Asset Management, LLC  v. Bond

 

Case No.:       1-06-CV-066470

 

Defendant Nathan Bond moves to vacate a default entered on September 7, 2006, and a default judgment entered on September 29, 2006.  The motion is directed to the court’s inherent power to vacate the judgment based on extrinsic fraud: specifically, “a willfully false affidavit of service.”  (Notice of Motion, at 1:25.)

 

The court file contains a proof of service, filed on July 27, 2006 and apparently signed by “D. Nieman”, stating that on July 23, 2006, Defendant was served at 14908 San Pablo Avenue, San Jose, California, with the summons, complaint and related papers.

 

This motion is supported by two declarations.  Defendant’s declaration admits that he has lived for the last 18 years at the address shown on the proof of service, and that he did live there on July 23, 2006.  He also admits that he cannot say where he was on that date, but denies that he was served on that date or ever.  Plaintiff asserts that he did not know about the judgment against him until Chase Bank advised him on April 3, 2014, of a levy against his account.

 

Plaintiff’s counsel provides the second declaration in support of the motion, stating that he “personally conducted a search at the Santa Clara County Recorder of the documents described in this motion, and attached hereto.”  (Chester Declaration, at 11:4-5.)  There are no other facts provided to authenticate or to render admissible the referenced documents.  The attachments can be described as follows:

Exhibit F–a process server bond relating to David J. Nieman, apparently dated August                        16, 2005

Exhibit G–a Notice of Federal Tax Lien, apparently dated August 16, 2005, and             referencing as “Taxpayer” “David Joshua Nieman”

Exhibit H–a Notice of State Tax Lien, apparently dated September 26, 2000, and             referencing as “Name of Taxpayer(s)” “David J. Nieman AKA Anthony Patrick Leal             AKA David Jacob Neaman”

Exhibit I–a Notice of Federal Tax Lien, apparently dated April 3, 1995, and referencing     as “Name of Taxpayer” “Anthony P Leal AKA David Joshua Nieman”

Exhibit J–Northern District of California Claim Register, possibly referring to a             bankruptcy case involving David J. Nieman closed on March 18, 1999

Exhibit K–a process server’s bond relating to Anthony Leal and apparently dated March 9, 1989

Exhibit L–a process server’s bond relating to David Nieman and apparently dated             November 12, 1997.

 

The memorandum in support of the motion argues that the process server who signed the proof of service in this case is “not worthy of belief” because his tax liens created a financial incentive to claim he had served Defendant when he had not.  (Memorandum, at 8:1-5.)  Defendant further argues that AKAs are an indication of deceptive intent (id., at 8:6-13), and that the process server who signed the proof of service in this case also used a different name and a different registration number (id., at 8:14-20).

 

            I.  Failure to Comply with Code of Civil Procedure Section 1008

 

Section 1008 applies to this motion, as Defendant filed another motion for the same relief on May 1, 2014, which was heard and denied on May 29, 2014.  This motion was then filed on June 13, 2014.

 

“A party who originally made an application for an order which was refused […] may make subsequent application for the same order upon new of different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, and what order or decisions were made, and what new or different facts, circumstances or law are claimed to be shown. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex part motion.” (Cal. Code Civ. Proc., § 1008(b).)

 

Neither declaration submitted in support of Defendant’s motion sets forth the facts required by section 1008(b).

 

When these statutory requirements are not met, the renewal motion must be denied.  (Cal. Code Civ. Proc., § 1008(e): “No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.”)

 

Thus, this motion must be denied on this basis alone.

 

II.  Failure to Provide Admissible Evidence. 

 

The purported facts concerning the process server which are set forth in Defendant’s memorandum may not be the basis for granting relief unless they are supported by admissible evidence.  Factual assertions in a memorandum which are not supported by evidence cannot provide a basis for granting relief.  (Smith, Smith & Kring v. Superior Court (1997) 60 Cal.App.4^th 573, 578.)

 

Defendant has not authenticated or otherwise established a foundation for any of the documents attached to the motion.  Counsel’s declaration that he personally conducted a search is not sufficient to authenticate the documents or to render their contents admissible for the truth of any matter stated therein.  It is far from self-evident that the documents all relate to the person who signed the proof of service.

 

III.  Failure to Rebut the Presumption of Service

 

Even if the court considered the documents provided by counsel and regarded them as relating to the process server, there is still an insufficient basis to grant the relief requested.

 

Filing a proof of service that complies with statutory standards creates a rebuttable presumption that service was proper.  Floveyor Int’l, Ltd. v. Superior Court (1997) 59 Cal.App.4^th 789, 795.  Defendant has made no assertion that statutory standards were not met, and the presumption applies.  Therefore, Defendant is required to put forward evidence sufficient to rebut the presumption.

 

Extrinsic fraud only arises when one party has in some way fraudulently been prevented from presenting his or her claim or defense.  Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4^th 1294, 1300 (affirming order denying motion to set aside default judgment on ground of extrinsic fraud).  When the action is outside the statutory period for relief from default, the strong public policy in favor of the finality of judgments requires that equitable relief from a default judgment is available only in exceptional circumstances. (Rapplyea v. Campbell (1994) 8 Cal.4^th 975, 982; In re Marriage of Stevenot (1984) 154 Cal.3d. 1051, 1064.)

 

Defendant relies on four cases to support his argument that the default and subsequent judgment against him should be vacated.  Three of these cases, even according to Defendant, do not relate to a false affidavit of service (Memorandum, at 7:7-14 and 16-19):  Weitz v. Yankosky (1966) 63 Cal.2d 849, 855 (affirming order vacating judgment: defendant reasonably believed that insurance company would defend); Olivera v. Grace (1942) 19 Cal.2d 570, 576 (reversing judgment after demurrer sustained without leave to amend: complaint in equity stated cause of action where plaintiff’s mother had not had a fair hearing due to her mental incompetence); Peralta v. Heights Med. Ctr., Inc. (1988) 485 U.S. 80, 85 (ruling assumes, and therefore does not address, that defendant did not have notice of the claim).  Although Defendant cites the fourth case for the proposition that a judgment may be vacated “when willfully false affidavits were filed” (Memorandum, at 7:15-16), the cited case does not involved a false affidavit of service.  Bennett v. Hibernia Bank (1956) 47 Cal.2d 540, 558 (reversing judgment after demurrer sustained without leave to amend: complaint in equity stated cause of action when, in underlying in rem case involving rights in membership corporation, plaintiff had right to be served personally rather than by publication when corporation with diligence could have served her personally).

 

However, a case that does involve a false affidavit of service is instructive as to the type of proof required to establish extraordinary circumstances warranting equitable relief vacating a judgment. In County of San Diego v. Gorham (2010) 186 Cal.App.4^th 1215, 1233, setting aside the judgment was warranted based on extrinsic fraud of process server where the defendant proved that he was incarcerated on date of claimed service.  That is, the defendant proved that the service could not have happened as claimed on the affidavit of service.

 

In this case, the only proof provided by Defendant as to service is his own self-serving conclusion that he was not served.  Particularly since he admits that he lived at the place of service and cannot recall where he was on the date of service, that conclusion alone is not sufficient to rebut the presumption.

 

Defendant argues that, despite the presumption, the proof of service should be disregarded because the process server used multiple names and had substantial debt.  Defendant urges that these two facts compel the conclusion that the process server was generally untrustworthy and had a motive to falsify the proof of service.  This does not amount to evidence that the proof of service was false.

 

Here, unlike County of San Diego, there is no proof provided, apart from Defendant’s self-serving denial, that shows that Defendant was not served at the time and place stated in the proof of service.  Accordingly, the presumption is not rebutted and the motion is denied.