Case Number: VC047189 Hearing Date: January 03, 2019 Dept: SEC

BUSANOVITCH v. DAPRA

CASE NO.: VC047189

HEARING: 03/07/17

JUDGE: LORI ANN FOURNIER

#7

TENTATIVE ORDER

Defendant DAPRA’s motion to set aside default judgment is DENIED.

Opposing Party to give Notice.

This action for quiet title was filed by Plaintiff LOUISE I. BUSANOVITCH on August 24, 2006. Default Judgment by Court was entered against Defendant JEFFREY DAPRA on July 2, 2012.

Defendant DAPRA moves to set aside the default judgment entered against him on July 2, 2012 where the default judgment was allegedly caused by Defendant DAPRA’s attorney’s extrinsic fraud. Defendant argues, specifically, that “Defendant DaPra was never advised of the [June 4, 2012] trial dates he was never served the February 22, 2012 Order continuing the trial from February 27, 2012 to June 4, 2012 or otherwise advised of the continued trial date.” (Notice of Motion, 2: 6-8.)

A party may move to aside a default judgment by showing “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.” (emphasis added.) (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 181.) “Extrinsic fraud usually arises when a party is denied a fair adversary hearing because he has been deliberately kept in ignorance of the action or proceeding, or in some other way fraudulently prevented from presenting his claim or defense. It occurs when the unsuccessful party has been prevented from fully exhibiting his case, by fraud or deception practice on him by his opponent, as by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff. In those situations, there has not been a real contest in the trial or hearing of the case, and the judgment may be set aside to open the case for a fair hearing.” (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 47.)

Here, it is Defendant’s position that his own attorney failed to give him notice of the June 4, 2012 trial date. Therefore, Defendant was never served with notice of trial. Defendant further argues that he only “recently discovered that a judgment was entered against him when he received a notice in the mail from the Orange County Recorder’s Office indicating than an abstract of judgment had been recorded against his newly acquired personal residence on or about September 5, 2018.” (Motion 1:1-6.)

Judgement was entered on July 2, 2012. Notice of Entry of Judgment, and an accompanying proof of service was FILED with this Court on July 18, 2012. Defendant’s former counsel of record (Dennis Gaughan) was served with the Notice of Entry of Judgment on behalf of Defendant.

Defendant’s Motion to Set Aside Judgment is denied. First, notice of trial was properly given to Defendant’s attorney of record. Second, Defendant has not submitted any evidence or argument to show that PLAINTIFF engaged in any acts that would constitute extrinsic fraud. Third, Defendant has not acted diligently in moving to set aside the judgment entered against him in 2012.