Opinion
E080919
02-07-2024
KRISTOPHER L. DREYER, Plaintiff and Appellant, v. RICHARD GREGORY WHITE, Defendant and Respondent.
Kristopher L. Dreyer, in pro. per., and for Plaintiff and Appellant. Law Offices of Darren P. Trone and Darren P. Trone for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super. Ct. No. CVRI2103873. O.G. Magno, Judge. Affirmed.
Kristopher L. Dreyer, in pro. per., and for Plaintiff and Appellant.
Law Offices of Darren P. Trone and Darren P. Trone for Defendant and Respondent.
OPINION
RAPHAEL J.
Appellant sued respondent for defamation, libel, slander, and fraud, and obtained a default judgment after respondent failed to appear. According to respondent, he first became aware of the lawsuit and the judgment when he learned of an attempt to garnish his wages. He promptly filed a motion to set aside the default and judgment, which the trial court granted after crediting his claims about when he had received notice. We conclude the trial court did not abuse its discretion and affirm.
Dreyer asks us to take judicial notice of a tentative ruling in a separate state lawsuit and an email chain related to a settlement in separate federal proceedings. We may take judicial notice of the records of "any court of this state." (Evid. Code, § 452, subd. (d)(1).) However, the tentative order is irrelevant to this appeal as it is outside the record on which the trial court's judgment is based. (Freeman v. Sullivant (2011) 192 Cal.App.4th 523.) There's no basis whatsoever for taking notice of email messages that were not made part of the trial court records. (Evid. Code, §§ 451, 452, 459.) We deny both requests.
I FACTS
On August 23, 2021, appellant Kristopher L. Dreyer sued Richard White and
Karen White, a married couple, alleging they made and published statements accusing him falsely of criminal conduct. He alleged causes of action for defamation, slander, and libel. He also included a cause of action for fraud, alleging Richard White made the statements to gain insurance coverage for his employer, Riverside Christian Schools.
Three days later, Dreyer filed proof of service of process forms for both defendants. The forms indicated Ginny Lin "personally delivered the [summons and complaint] to the part[ies] or person authorized to receive service of process for the part[ies]." One form says she delivered process to Richard White at 3435 Santa Maria Way in Santa Maria at 11:00 o'clock on August 26, 2021. The other form says she delivered process to Karen White at 453 El Cerrito in Santa Maria at 6:00 o'clock the same day. The forms indicate Ginny Lin is not a registered California process server and lists her address as being in Walnut, California.
The Whites did not respond to the complaint, and on September 30, 2021, Dreyer filed an application for default judgment against Richard White. He requested dismissal of Karen White the same day. In three declarations, Dreyer provided additional information about the dispute. He said his company, KLD, LLC had a contract to provide management services to the Riverside Christian Schools through January 1, 2023. However, White reported to school leadership that Dreyer had misappropriated school funds, among other allegations. The accusations, Dreyer said, led the Riverside Christian School Board to suspend Dreyer on December 19, 2018, and stop payment on his contract. Dreyer said he lost $300,000 in income under the contract and suffered reputational and emotional damages. Months later, he said, the Riverside Christian School filed for bankruptcy, and White again falsely accused him of criminal conduct in communications with the bankruptcy trustee. He said these statements led the trustee to file an adversary proceeding against Dreyer.
The trial court entered a default judgment against White on February 8, 2022, awarding Dreyer $1,800,000 in economic damages and $450 in costs. On February 10, Lydia Dreyer signed a proof of service indicating she sent the judgment and related minute order to Richard White at 3435 Santa Maria Way in Santa Maria, California. Appellant began seeking to enforce the judgment by filing a writ of execution on October 24, 2022.
On November 18, 2022, White filed an ex parte application under Code of Civil Procedure sections 473, subdivision (d), and 473.5 to set aside the entry of default and default judgment and quash the writ of execution. White alleged Dreyer engaged in "proof of service fraud" and did not properly serve him, and he did not have actual notice of the lawsuit until after the default judgment had been entered. The trial court denied the ex parte application, but invited him to file a noticed motion, which he did on December 8, 2022. White also submitted an answer to Dreyer's complaint and requested leave to file the answer.
In attached declarations, signed under penalty of perjury, Richard and Karen White explained they were never served with the lawsuit and did not learn of it until October 26, 2022. They represented Dreyer did not serve the summons and complaint on them at any time. Nor had they received service of a request for default or default judgment. Both represented they did not become aware of the judgment until October 26, 2022, when a Santa Barbara County Sheriff's Deputy presented wage garnishment documents to the finance manager at the school where they both worked. Both said they had made no attempt to evade service.
The trial court granted the motion to set aside the default and default judgment on February 8, 2023. The court granted relief under Code of Civil Procedure section 473.5, subdivision (a), which allows a party to challenge a default or default judgment when service of a summons has not resulted in actual notice in time to defend the action. Such a notice must be filed within a reasonable time, but in all cases by the earlier of two years after entry of a default judgment or 180 days after service of a written notice of the default or default judgment. (Code Civ. Proc., § 473.5, subd. (a), unlabeled statutory citations refer to this code.)
Though White filed his motion to set aside the default judgment more than 180 days after February 2022, when Dreyer said he had served them with notice of the default judgment, the trial court found White had rebutted any presumption of service by denying he received notice of the lawsuit or the judgment before he received the wage garnishment. Since their motion to set aside the default and default judgment came within two years of the entry of judgment on February 8, 2022, the court held the motion was timely, and set aside the judgment and permitted White to file an answer.
The trial court granted relief, in the alternative, under Code of Civil Procedure section 473, subdivision (d), which allows the court to vacate a void judgment. The court held a default judgment entered against a defendant who was not served with a summons is void and the party may seek to set it aside within two years of the judgment. The court noted a declaration of service by a registered process server is presumed accurate. However, the process server in this case was not registered, and the court concluded White "adequately rebuts the presumption of service by declaring he was never served." The court also quashed the writ of execution and wage garnishment.
On March 16, 2023, Dreyer filed a notice of appeal of the postjudgment order under section 904.1, subdivision (a)(2).
II ANALYSIS
Dreyer argues the trial court erred by setting aside the default and default judgment against White. We disagree.
Section 473.5 sets out the circumstances when a party may move for relief from a default or default judgment and be allowed to defend the action. The statute expressly allows a party to "file a notice of motion to set aside [a] default or default judgment" "[w]hen service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action." (§ 473.5, subd. (a).) The motion must be accompanied by "an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action." (Id., subd. (b).)
The party challenging a default or default judgment must file the notice of motion and accompanying documents "within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered." (§ 473.5, subd. (a).) If the trial court finds "the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect," the court "may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action." (Id., subd. (c).)
White filed his motion to set aside the default and default judgment, along with the required declarations and proposed answer, within two years of February 8, 2022, and within 180 days of receiving notice of the default judgment on October 26, 2022. The only questions raised in this appeal are whether the trial court erred when it credited the representations of White and his wife that (1) the original service of the summons did not result in his actual notice of the action against him, and (2) he did not receive notice of the default judgment Dreyer says he caused to be served by mail in February 2022, which would have required him to move for relief from the default judgment before September 2022.
We review for abuse of discretion the trial court's ruling that White was entitled to discretionary relief from the judgment under section 473.5, subdivision (a). (Ramos v. Homeward Residential, Inc. (2014) 223 Cal.App.4th 1434, 1444.) "In reviewing the court's grant of discretionary relief from default, we note: 'It is the policy of the law to favor, whenever possible, a hearing on the merits. Appellate courts are much more disposed to affirm an order when the result is to compel a trial on the merits than when the default judgment is allowed to stand. [Citation.] Therefore, when a party in default moves promptly to seek relief, very slight evidence is required to justify a trial court's order setting aside a default.'" (Ibid.)"' "Even in a case where the showing . . . is not strong, or where there is any doubt as to setting aside of a default, such doubt should be resolved in favor of the application." '" (Ibid.)
Here, White moved promptly to challenge the default and default judgment after the date he represents he first became aware of them. The trial court credited the representations of White and his wife that they did not receive actual notice of the action from the initial service of summons or at any other time until they first became aware of the judgment on October 26, 2022. The court's findings are adequately supported by the declarations, signed under penalty of perjury, which indicate service of the summons and complaint was not completed. (See § 2015.5 [declaration equivalent to an affidavit].) The declarations also indicate White did not receive service of the default judgment in February.
Under the low standard of proof required to warrant setting aside a default or default judgment, we conclude the order granting relief was within the trial court's sound discretion. The trial court could reasonably conclude White did not receive notice of the summons and complaint or the default and default judgment until October 26, 2022, and could reasonably conclude allowing him to defend the action was therefore in the interest of justice. Since the trial court's decision was proper under section 473.5, we need not decide whether it was also proper under section 473, subdivision (d).
III DISPOSITION
We affirm the order setting aside the default and the default judgment. Respondent is entitled to his costs on appeal.
We concur: RAMIREZ P. J. MILLER J.