Opinion
NOT TO BE PUBLISHED
STEIN, J.
Defendant Fletcher S. Smith appeals from an order denying his motion to set aside a default judgment entered in favor of plaintiff James R. Orosco. Orosco has failed to file a responsive brief. Because of that failure, we have denied Orosco’s request for oral argument, and decide the case on the record and Smith’s opening brief. (Cal. Rules of Court, rule 8.220(a)(2).)
We strike the award of punitive damages from the judgment and affirm the order denying relief from default.
BACKGROUND
According to the moving papers filed by Smith, and not disputed by Orosco, the parties are art dealers who have had professional dealings with one another over the years. In 1999, two events occurred that led to litigation between them. The first is not directly related to this appeal. Orosco sold a sketch to Smith, who was acting at the time as agent for Lawrence H. Butterfield. It was discovered the sketch was a fake. Butterfield filed suit against Orosco, who cross-complained against Smith and others. Orosco later stipulated that judgment would be entered against him, and, in proceedings that are discussed in a second appeal, Orosco v. Smith, case No. A113989, Orosco obtained a default judgment on his cross-complaint against Smith for damages in the amount of $26,250.
The second event, on which this appeal is based, took place on October 28, 1999, when Smith went to Orosco’s place of business. An argument broke out that led Orosco to call the police, but did not result in any arrest. According to the police report, Smith told the reporting officers Orosco owed money to Smith and had one of Smith’s paintings in his possession. They argued about money. Orosco asked Smith if he was armed, and after Smith, joking, said that he was, Orosco called the police. Smith took a painting, telling Orosco he intended to keep it until Orosco gave him back his own painting. When Smith picked up the painting he took, another painting or frame was broken. Orosco reported Smith had picked up and thrown a picture frame, breaking it. He stated Orosco had threatened him, and had pushed him. Orosco said he did not wish any action to be taken against Smith. The officers reported the parties agreed to, and did, return each other’s paintings. The damage to the picture frame was estimated at approximately $125.
In April 2001, Orosco filed a complaint against Smith in the Contra Costa Superior Court, alleging that on October 28, 1999, Smith had flown into a rage, damaging and destroying Orosco’s personal property, and assaulting Orosco and causing injury to his back. Orosco alleged his resulting hospital and medical expenses were estimated to be in excess of $100,000. He sought compensatory and punitive damages. Orosco first attempted to serve Smith by mail at an Oakland address, but Smith by then had moved to Massachusetts. On July 17, 2001, Hampshire County, Massachusetts, Deputy Sheriff George A. Symborski filed a proof of service reciting he had served Smith with the summons and complaint at 116 Pleasant Street in Easthampton, Massachusetts. Deputy Symborski later declared, “The business was located through the main entrance, left hand side, on the first floor.[] The individual, when asked, identified himself as Fletcher Smith. I did not ask for formal proof of identification. The description of the individual served was to the best [of] my knowledge white, 6 feet one inch height, 230 pounds weight, brown hair, and balding. He was angry at the time of service. He was alone.” The description generally matched that provided by Orosco to the deputy: that Smith is “a white male, approximately 40 years old, 6' 0" tall, 200 pounds, brown eyes, medium length dark brown hair with some graying.”
Smith acknowledged that on July 17, 2001, he lived and worked at 116 Pleasant Street, but claimed he worked out of an apartment on the second floor.
Smith did not answer the complaint. On August 17, 2001, Orosco filed a request for entry of default, declaring under penalty of perjury he had mailed the request to Smith at 116 Pleasant Street, Easthampton, Massachusetts. The clerk entered default as requested. Smith did not respond.
Orosco appeared on December 26, 2001, for purposes of conducting a default hearing, but the court, finding Orosco had not served Smith with a statement of damages, reset the matter to February 6, 2002. A proof of service of the statement of damages was executed by a person identifying himself as Marmion Hays, who declared he had effected service on December 29, 2001, by personally delivering copies of it at 23 Dragon Circle, Easthampton, Massachusetts—the address of Smith’s mother. Orosco also filed a proof of service, declaring he had served his request for entry of default and reservation of rights to seek punitive damages on Smith by mail at the same address.
Orosco appeared on February 6, 2002. He claimed Smith had shoved him to the floor, with the result Orosco suffered three herniated disks in his neck, causing Orosco to suffer pain and numbness that would require surgery. Orosco claimed he had been going to physical therapy three times a week. He had paid $25,200 for physical therapy, $2,500 for preoperative medical fees and expenses and $1,430 for medication and pain pills. Orosco estimated he would be required to pay $35,000 for the surgery, $1,500 for postoperative MRI’s and office visits, $3,600 for postoperative physical therapy and $150 for postoperative medication. He claimed compensatory damages in the amount of $74,555 for medical expenses plus $175 for the damage to his personal property and $75,000 punitive damages for what he claimed was an unprovoked attack. Smith did not appear at the hearing. The court, after hearing Orosco’s testimony, awarded Orosco compensatory damages in the amount of $74,555 and punitive damages in the amount of $75,000, for a total award of $149,555. On February 8, 2002, the court entered default judgment in that amount, plus costs of $410 and interest in the amount of $26,753.41, for a total award of $176,718.41.
On December 2, 2005, Smith filed his motion for an order setting aside and vacating the default. He claimed the first time he had received actual notice of the matter was on April 3, 2004, when he found a copy of a motion for attachment at his mother’s home, where he apparently then resided. Smith acknowledged the summons and complaint had been served by Deputy Sheriff Symborski in July 2001, but claimed it had to have been served on some other person, even though that person had identified himself to the deputy as Fletcher Smith. He contended, in essence, that Orosco never served him with any of the pleadings or other court documents and had perpetrated a fraud on him and the court by falsifying the proofs of service. Smith sought relief on various theories, including that the judgment was void for lack of service.
At the hearing on the motion, Smith’s attorney focused on the court’s concern of a lack of diligence in seeking relief from default, asserting the delay was because of the difficulty in obtaining evidence to support Smith’s claim that Marmion Hays had not served Smith with a statement of damages. The court ruled against Smith, unequivocally finding the delay to have been unreasonable. The superior court denied the motion to set aside and vacate the default, finding Smith had failed to show diligence in moving to set aside the default, and also that the motion was untimely filed pursuant to Code of Civil Procedure section 473.
This appeal followed.
DISCUSSION
I.
Relief from Default—Compensatory Damages
If, as Orosco contended and as the various proofs of service indicate, Smith was served with the summons and complaint and with the statement of damages, he has no excuse for failing to appear and no grounds for setting aside the judgment.
If Deputy Symborski effected service of the summons and complaint, but, as Smith contended, Smith never was served with the statement of damages, the argument is that Smith did not respond to the complaint because he erroneously believed Orosco was seeking little more than an amount covering the damage to the picture frame, even though the complaint alleged Orosco was estimating his hospital and medical expenses as being in excess of $100,000 and was seeking both compensatory and punitive damages. In such a case, Smith’s statutory remedy lay with Code of Civil Procedure section 473, subdivision (b), which authorizes the trial court to grant a party relief from a judgment “taken against him or her through his or her mistake, inadvertence, surprise or excusable neglect.” The party seeking relief is required to apply for it “within a reasonable time, in no case exceeding six months, after the judgment . . . was taken.” (Ibid.) Where, as here, a party is seeking relief from a default judgment, the six-month time period begins to run from the date the default was entered, not from the date of the judgment. (Weiss v. Blumencranc (1976) 61 Cal.App.3d 536, 541.) Smith did not seek relief until over four and one-half years after default was entered.
A trial court also has discretion to set aside a default on equitable grounds. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981 (Rappleyea).) “A judgment against a party may be set aside in equity when it is obtained by extrinsic fraud or mistake. [Citation.] The ‘essential characteristic’ of extrinsic fraud ‘is that it has the effect of preventing a fair adversary hearing, the aggrieved party being deliberately kept in ignorance of the action or proceeding, or in some other way fraudulently prevented from presenting his claim or defense.’ [Citation.]” (Parage v. Couedel (1997) 60 Cal.App.4th 1037, 1044.) Although relief is readily available when it is sought before judgment has been entered, after default judgment has been obtained, “equitable relief may be given only in exceptional circumstances.” (Rappleyea, supra, 8 Cal.4th at p. 981.) Assuming, as Smith claims, extrinsic fraud prevented him from receiving notice of the judgment until April 3, 2004, and also assuming he never was served with the statement of damages, he might be entitled to relief, but only if he satisfied three elements: “ ‘First, the defaulted party must demonstrate that it has a meritorious case. Secondly, the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Lastly, the moving party must demonstrate diligence in seeking to set aside the default once . . . discovered.’ ” (Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 315.)
Smith claimed he had not pushed or otherwise assaulted Orosco and/or Orosco had not suffered any injury even if Smith had pushed him. He attached the police report, which did not include anything suggesting Orosco had suffered any serious physical injury as a result of the altercation, pointing out that the copy of the police report filed by Orosco had been carefully redacted so that it did not show anything that tended to contradict Orosco’s allegations. It also is true that at the prove-up hearing, Orosco stated he had medical records to support his claim that he required surgery, but it is not at all clear that the records would establish Orosco’s injury resulted from the altercation with Smith. At least arguably, this evidence and argument was sufficient to satisfy the first element for a grant of equitable relief: that Smith had a meritorious case.
Smith did not provide any excuse for failing to present a defense to the original action, except his contention that he was never in fact served with the summons and complaint—a point that, as we have said, was not decided by the trial court.
Assuming Smith was served with the summons and complaint, he had no excuse for being unaware of the damages being sought by Orosco because they were alleged in the complaint. But even if he had stated a valid reason—such as complete ignorance of the proceedings or a reasonable mistaken belief judgment would not exceed the damage to the picture frame—he still was required to act with reasonable diligence. Smith did not file his motion for relief until over 18 months after he had received actual notice of the default. His only excuse for the delay was the difficulty of obtaining evidence to back up his assertions. The trial court rejected that argument, and, on this record, its determination of that point was not an abuse of discretion. Smith supported his argument with his own declaration, which, of course, was easy to obtain. He also compared the signature purportedly placed by Marmion Hays on the proof of service filed in this case with the signatures or initials purportedly placed by Marmion Hays on documents filed in the Butterfield action. There was no expert evidence or opinion that the initials and signatures could not have come from the same person. Smith simply provided copies of the initials and signatures, claiming they are dissimilar. Smith produced evidence Marmion Hays did not reside at the address shown on the proof of service, and also produced some evidence Marmion Hays might not have been in Massachusetts at the time he purportedly served the statement of damages. The evidence included information gleaned from actions attributed to Mr. Hays or someone with a similar name in connection with the Butterfield case. There is a declaration by Smith’s Massachusetts attorney that his attempts to contact Hays led him to an address where Hays did not live and to an invalid telephone number. The owner of the property Hays had listed as his address confirmed that no one named Hays lived there. Smith’s aunt declared that she had been dining with Smith at the time he was supposed to have been served by Deputy Symborski. Smith also filed documents and other matters which, in his opinion, tended to show Orosco was untrustworthy. Without passing on the admissibility or persuasiveness of the evidence submitted by Smith, suffice it to say there was little in it justifying the delay in seeking relief from default.
The court in Rappleyea, supra,8 Cal.4th 975 found a delay of over one year in seeking relief from default was not fatal to the moving party’s case, but in so finding, relied on circumstances that distinguish that case from this one. Of particular significance is that the plaintiff in that case, although quickly taking the defendants’ default, did not obtain a default judgment until after the defendants had tried and failed to obtain relief from default. The Supreme Court explained that the diligence prong of the three-prong test is intertwined with the prejudice to the other party. It pointed out that once default judgment has been obtained, there is a strong public policy in favor of the finality of judgments, based in part on the distaste for the forfeiture of a judgment, which is vested personal property. (Id. at pp. 981-984.) The court held, “[p]rejudice to a plaintiff is obviously less if judgment has not been entered when a defendant seeks equitable relief. Therefore, we believe the diligence prong simply cannot assume the importance here that it would in the ordinary case wherein the trial court would be reversing a judgment and divesting a plaintiff of a property right by granting equitable relief from default.” (Id. at p. 984.) In addition, the plaintiff’s own lack of diligence in obtaining judgment belied any claim he might make of eagerness to obtain an early judgment. (Ibid.) Here, Orosco acted promptly in obtaining default judgment and judgment had long been entered by the time Smith filed his motion for relief. Under the Supreme Court’s analysis in Rappleyea, granting Smith’s motion would cause Orosco exactly the kind of prejudice that is intertwined with the requirement of diligence, and justifies, if not requires, that the motion for relief be denied.
The case of Falahati v. Kondo (2005) 127 Cal.App.4th 823 provides some authority for the proposition that a party who has obtained a default judgment by means of an unfair maneuver cannot justifiably rely on such a judgment and therefore suffers little prejudice when it is set aside. The court there granted relief even though the defendant did not seek relief until 10 months after the default judgment was entered. (Id. at pp. 833-834.) We are not at all certain this authority is consistent with the statutory and other time limitations that have been worked out by the Legislature and the courts over the years, particularly because the points made by the court in carving out an exception to the established rules would be present in most or all cases involving extrinsic fraud. In any event, the responding party’s prejudgment conduct is but one factor going to the question of diligence. (Weitz v. Yankosky (1966) 63 Cal.2d 849, 857.)The court here clearly found Smith’s postjudgment and postnotice of judgment delay to be unreasonable irrespective of any belief Orosco may have had as to the validity of the judgment itself or any fraud Orosco may have perpetrated on Smith. It also should be pointed out that where the defendants moved for relief from default before judgment was entered in Rappleyea, and where the defendant in Falahati sought relief 10 months after default judgment was entered, Smith did not seek relief until over three years after default judgment was entered.
Ultimately, the decision is one for the trial court’s discretion. (Rappleyea, supra, 8 Cal.4th at p. 981; Weitz v. Yankosky, supra, 63 Cal.2d at p. 854, 857.) There was no abuse of discretion here.
II.
Setting Aside Void Judgment—Compensatory Damages
The trial court did not specifically rule on Smith’s argument that the judgment was void for lack of personal service. To the contrary, the court crossed out findings, presumably put into the order by Orosco, that Smith had been served with Orosco’s complaint and had failed to respond to the complaint within the time prescribed by law. Ordinarily, we would remand the matter so that the trial court could resolve any issues of fact relevant to the argument that the judgment is void, but as we find Smith is not entitled to relief on this basis as a matter of law, remand is neither appropriate nor necessary.
As discussed previously, Smith did not and does not dispute that Deputy Symborski effected service of the summons and complaint, but claims Deputy Symborski served the wrong man, even though the man was at or near Smith’s residence and place of business, generally met Smith’s description and identified himself as Smith. Assuming the truth of this claim, the judgment may be void for lack of personal jurisdiction, but it is not void on the face of the record. In such cases, the usual avenue for relief is by way of Code of Civil Procedure section 473.5, which allows a party to file a motion to set aside a default or default judgment when service of a summons has not resulted in actual notice to a party in time to defend the action. Code of Civil Procedure section 473.5 is chiefly designed to cover the situation where a proper constructive service was made but did not result in actual notice (8 Witkin, Cal. Procedure (4th Ed. 1997) Attack on Judgment in Trial Court, §§ 206 & 207, pp. 711-712), but it reasonably also applies where personal service was made but did not result in actual notice. Section 473.5, subdivision (a) provides, “The notice of motion shall be served and filed 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.” Here, the default judgment was entered on February 8, 2002. Smith did not file his motion until December 2, 2005, more than three years after the judgment was entered, and approximately 18 months after concededly receiving actual notice of the default judgment.
Finally, Smith also could seek relief under Code of Civil Procedure section 473, subdivision (d), which authorizes the trial court to “set aside any void judgment or order.” It has been held this paragraph applies where there is a default judgment valid on its face but otherwise void because service was improper. (Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1121 (Silverman); and see Falahati v. Kondo, supra, 127 Cal.App.4th at p. 830, fn. 9 & Schenkel v. Resnik (1994) 27 Cal.App.4th Supp. 1, 3-4.) In such cases, the two-year limitations period of Code of Civil Procedure section 473.5 applies by analogy. (Silverman,at p. 1124.) Again, Smith failed to seek relief within two years after entry of the default judgment.
We find here only that Smith is not entitled to relief from default, stating no opinion as to whether he might be unable to vacate the default and default judgment by means of an independent action in equity. (See Groves v. Peterson (2002) 100 Cal.App.4th 659, 667-671.)
III.
Setting Aside Void Judgment—Punitive Damages
At the default hearing, Orosco produced some evidence supporting the award of compensatory damages, but no evidence whatsoever supporting an award of punitive damages. (See Adams v. Murakami (1991) 54 Cal.3d 105, 110-123 and Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 384.) Under the circumstances, the face of the record provides no basis for an award of punitive damages. Therefore, although Smith is not entitled to any relief from default, and is not entitled to have the judgment set aside as to the award of compensatory damages, he is entitled to have the judgment set aside as to the award of punitive damages.
CONCLUSION
The order denying the motion to set aside the default judgment is affirmed. The judgment is modified to strike the award of punitive damages. Each party shall pay his own costs on appeal.
We concur: MARCHIANO, P. J., MARGULIES, J.