2008-00021775-CL-CL

Unifund CCR Partners vs. Sze Y Tse

Nature of Proceeding: Motion to Set Aside Default and Default Judgment

Filed By: Tse, Szeyeung

Defendant Sze Y. Tse’s motion to vacate default judgment is DENIED.

This is an action for money due on a credit card. On June 3, 2009, default judgment
was entered against Defendant. Defendant states that service of the
summons/complaint was not properly served upon him. The proof of service states
that the summons/complaint were served via substitute service on December 15, 2008
on an “Asian, Male, 40 years old, Black Hair, 5 Feet 6 Inches, 140 Pounds.”
Defendant states that the only other adult male in the house at that time was his father
-in-law, who was 59 years old. (Declaration of Szeyueng Tse, para. 4.) Defendant
states that no one in his household informed him that they had received any
documents and that he did not receive a copy of the summons/complaint in them mail.
(Id. paras. 14-15.) Defendant’s father-in-law also filed a declaration stating that he did
not receive any documents on December 15, 2008 and that no one came to the house. (Declaration of Wai Chan, paras. 6-8.)

As Defendant’s motion was made more than six months after the default was entered,
it is not properly directed to the court’s statutory power to grant relief for mistake or
excusable neglect under Code of Civil Procedure section 473. Moreover, the motion is
untimely pursuant to CCP 473.5, as it must be made within six months of notice of
entry of judgment or 2 years after entry of default judgment.

Defendant alternatively requests that the Court set aside the default and default
judgment on equitable grounds of extrinsic fraud or mistake. The Court has inherent
equity power under which it may grant relief from a default judgment where there has
been extrinsic fraud or mistake. (Lieberman v. Aetna Ins. Co., (1967) 249 Cal. App. 2d
515, 524-525.)

Extrinsic fraud occurs when a party 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. An
example of extrinsic fraud includes: failure to give notice of the action to the other
party, and convincing the other party not to obtain counsel because the matter will not
proceed (and then it does proceed). The essence of extrinsic fraud is one party’s
preventing the other from having her day in court. (City and County of San Francisco v.
Cartagena (1995) 35 Cal.App.4th
1061, 1067; accord, Estate of Sanders (1985) 40 Cal.3d 607, 614.) Extrinsic fraud
only arises when one party has in some way fraudulently been prevented from
presenting his or her claim or defense. (In re Marriage of Modnick (1983) 33 Cal.3d
897, 905; Kulchar v. Kulchar (1969) 1 Cal.3d 467, 471.)Extrinsic or collateral fraud
does not operate on matters pertaining to the judgment itself, but relates to the manner
in which it is procured.

Here, the declarations in support of the motion do not establish that the default
judgment was taken as a result of extrinsic fraud/mistake. Moreover, the Court notes
that May 27, 2009, the request for entry of default was mailed to Defendant. However,
he does not deny receiving the request.

Accordingly, the motion is DENIED.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.