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Rodriguez v. Rodriguez

California Court of Appeals, Second District, Seventh Division
Sep 9, 2008
No. B196836 (Cal. Ct. App. Sep. 9, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County. Super. Ct. No. BC310981 James E. Satt, Judge.

The Guerrini Law Firm, John D. Guerrini and Matthew J. Taylor for Defendant and Appellant Lorena Rodriguez.

Garret & Tully, P.C., Robert Garrett, Ryan C. Squire and Scott B. Mahler for Intervener and Respondent Cedric Sandoval.


WOODS, Acting P.J.

Lorena Rodriguez appeals from the court’s order denying her motion to vacate the default judgment entered against her. She claims the court abused its discretion in denying the motion because it was filed within two years of the entry of judgment and because she demonstrated that she never received actual notice of the proceedings against her. More specifically, she argues that she was never properly served with the summons and complaint. As we shall explain, her arguments lack merit. Appellant failed to demonstrate grounds for relief under Code of Civil Procedure sections 473.5 or 473. Appellant did not carry her burden to show she lacked actual knowledge of the action or that service of the summons or complaint was defective. Consequently, we affirm.

All statutory references are to the Code of Civil Procedure unless otherwise indicated.

FACTUAL AND PROCEDURAL HISTORY

This appeal arises out of a lawsuit filed by Vincent Rodriguez, Sr. (Rodriguez) against appellant and several others in which he alleged the fraudulent transfer of a parcel of real property. On April 7, 2004, Rodriguez served the summons and complaint on appellant by certified mail at 7415 N.W. 16th Street, #208B, Plantation, Florida. This was the same address that appellant had stated on the Short Form Deed of Trust and Assignment of Rents used to encumber the property at issue; the trust deed indicated that the filed document should be mailed to appellant at the Florida address. Records from the United States Post Office also indicated that the Florida address was an active mailing address for appellant from January 2000 until September 2004 and the active utilities for the address also listed appellant’s name.

Vincent Rodriguez, Sr. is not a party to this appeal.

The return receipt for the summons and complaint contained a signature and indicated that delivery at the address occurred on April 26, 2004. The receipt does not disclose, however, whether the person who signed it was appellant or her agent. The declaration attached to the service of process further indicates that Rodriguez’s counsel received the return receipt on April 28, 2004.

Appellant did not respond to the complaint. On May 26, 2004, Rodriguez served (at the Florida address), a request for entry of default. The clerk entered the default on May 27, 2004.

There is no evidence in the record before this court that Rodriguez served appellant with the notice of entry of default.

On February 22, 2006, Rodriguez obtained a default judgment against appellant. Thereafter, in April 2006 Rodriguez sold the property at issue in the litigation to respondent Cedric Sandoval.

On June 14, 2006, appellant filed a motion to vacate the default judgment and a motion to quash the service of the summons. Her written motion to vacate based on section 473.5 argued that the judgment was void because the court never had personal jurisdiction in the matter. Specifically, she argued the judgment had to be set aside because she was not properly served with the complaint and summons. She claimed that she lived in Columbia and was in Columbia at the time the complaint was served. She further denied signing the proof of service. She argued that because she was never served she lacked actual knowledge of the litigation as required under section 473.5. Her motion also referred to section 473, subdivision (d), not as a separate basis for the motion, but instead in a quotation from a case discussing section 473.5. Appellant supported her motion with a brief declaration in which she declared: She is a U.S. citizen; an article addressed to her sent by certified by mail from Rodriguez’s counsel was signed for by another person on April 26, 2004; she was not at the Florida address at the time and did not sign for the correspondence; and that she was in Columbia until July 30th, 2004.

In July 2006, the trial court granted respondent’s request to intervene in the matter and oppose the appellant’s motions.

At the first hearing on the matter in July 2006, respondent argued that appellant’s motion was based solely on the section 473.5 motion and should be dismissed because it was not filed within 180 days of the notice of entry of judgment as required by section 473.5. Respondent also argued that appellant failed to demonstrate that she lacked actual knowledge of the action. Appellant’s counsel argued among other things that section 473, subdivision (d) was also cited in the motion and could also be the basis of the motion to vacate.

The hearing was continued so that respondent could arrange to take appellant’s deposition. Thereafter the hearing resumed in January 2007, at which time the court ruled that pursuant to section 473.5 the motion was not timely filed. In addition, the court concluded that appellant failed to demonstrate that she never received actual knowledge of the lawsuit in time to defend. The court specifically stated its rationale and ruling as follows:

The court also denied the motion to quash.

Rodriguez’ motion to vacate the judgment is based on the provision CCP 473.5 [which] provides, “when service of a summons has not resulted in actual notice to a party in time to defend the action and a default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action,” CCP 473.5 (A). [¶] “The notice of motion must be filed within a reasonable time, but in no event shall it exceed the earlier of (1) two years after entry of default judgment against him or her or (2) 180 days after service on him or her of written notice that the default or default judgment had been entered. The motion must contain a declaration showing that the parties[’] lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. [¶] As argued in the opposing papers, this motion was not timely filed. Plaintiff served a request for entry of default on Rodriguez by mail on May 26, 2004. Service of a request for entry of default sufficiently serves as a notice of entry of default. Slusher versus Durrer, 69 Cal.ApP.3d, 747.

According to CCP 473.5 (A), Lorena Rodiguez had 180 days after service of the request for entry of default to file this motion which is the earlier of the two dates set forth in that code provision. This means that the motion should have been filed no later than November 26, 2004. The motion is not filed until June 14, 2006, which is untimely. The court finds it is of no moment that Rodriguez may not have received a notice of entry of default. In the Jackson versus Bank of America, 141 Cal.ApP.3d, 55, the court said that nonreceipt of notice does not invalidate a judgment. Thus the motion was not timely filed and for this reason alone it is denied. [¶] In addition, Rodriguez failed to demonstrate that she lacked the actual notice of this action in time to defend. Attached to the motion as exhibit no. 1 is a copy of the proof of service showing that Rodriguez was served with a summons and complaint by certified mail to her last known address in Plantation, Florida. Rodriguez filed a declaration explaining that service was not properly made on her in April of 2004, because she was not in the country. She asserts she was in Columbia and in support of her testimony she provides copies of her passports which contains stamps from Columbian authorities on July 30, 2004 and October 3, 2004, but this information is irrelevant. It is possible that Rodriguez was in the United States prior to July 30, 2004 the date stamped on her Columbian passport. That Columbian passport was issued on May 5, 2004, but she also had a U.S. passport issued to her on September 11, 1996. It’s quite possible she was in this country in April, 2004. The stamps on the Columbian passport do not sufficiently address Rodriguez’ whereabouts prior to July 30, 2004. [¶] Moreover, since the summons and complaint was made by certified mail pursuant to provisions of CCP 415.40, Rodriguez’ declaration fails to explain that the Plantation, Florida address where service was effectuated is incorrect or was not a proper location for service upon her. In fact, she admits that she was in this country between July 30, 2004 and October 3, 2004. [¶] If the Plantation, Florida address is correct she certainly would have received notice of this lawsuit when she was in this country between July 30 and October 3, 2004. Rodriguez has failed to demonstrate that she lacked actual notice of this lawsuit in time to defend the action or that lack of notice was not caused by her avoidance of service or inexcusable neglect. The motion is denied.”

Appellant timely appeals from the order denying her motion to vacate.

She does not appeal from the order denying her motion to quash.

DISCUSSION

In this court, appellant contends the trial court abused its discretion in denying her motion to vacate the default judgment because she timely filed the motion and because she demonstrated that she was out of the country and did not sign for the service of the summons and complaint. Thus she maintains the defective service deprived her of actual knowledge of the action. As we shall explain, the trial court properly denied the motion.

Preliminarily we note that a motion to set aside a default judgment falls within the discretion of the trial court and absent a clear showing of abuse the lower court’s determination will not be set aside. (Anastos v. Lee (2004) 118 Cal.App.4th 1314, 1317; see Ellard v. Conway (2001) 94 Cal.App. 540, 547.) With this standard of review in mind, we turn to appellant’s contentions with respect to sections 473.5 and 473.

A. Section 473.5

Pursuant to section 473.5, subdivision (a): “When 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, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. 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.” (§ 473.5, subd. (a).)

The 180 day and two year time limitation periods contained in section 473.5 also apply to motions filed under section 473, subdivision (d) seeking relief from default based on defective or lack of service of the summons. (Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 301, fn. 3; Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1124.)

In addition, under subdivision (b) to obtain relief under section 437.5, appellant must further submit “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.” (§ 473.5, subd. (b).)

In general, section 473.5 applies in those situations where service of the summons and complaint was valid, but it nonetheless failed to provide the defendant with actual knowledge of the proceedings in sufficient time to defend. (See e.g., Anastos v. Lee, supra, 118 Cal.App.4th at pp. 1316-1317 [defendant’s assailed service of process through publication].) In sum, section 473.5 requires that (1) the defendant timely move for relief; and (2) through no fault of his or her own the defendant lacks actual knowledge of the lawsuit in time to defend the action. The defendant shoulders the burden of affirmatively showing the prerequisites of section 473.5. (Id. at p. 1319; Tunis v. Barrow (1986) 184 Cal.App.3d 1069, 1080.)

1. Timeliness

The trial court concluded appellant’s section 473.5 motion was untimely because she filed it more than 180 days after she was served with the notice of the request to enter default. The court, relying on Slusher v. Durrer (1977) 69 Cal.App.3d 747, concluded that notice of a request for entry of default is the functional equivalent of the notice of the entry of default and thus triggered the 180 day rule in section 473.5, subdivision (a).

The lower court misread Slusher. In Slusher the trial court entered an order that vacated a default and default judgment entered against the defendant in a civil action. It appeared that defendant, who was served with the summons and complaint for the civil action during criminal proceedings arising out of the same incident, believed that after the criminal trial and payment of the fine all proceedings had terminated. After defendant failed to answer or otherwise timely appear in the civil action, a request to enter default was filed. The plaintiff did not properly serve notice of entry of default -- the declaration of mailing required by Code of Civil Procedure section 587 indicated that his address was unknown to plaintiff and her attorney. The motion to set aside the default was filed within 19 days after plaintiff mailed notice of entry of default judgment. The defendant’s motion for relief was based on the court’s inherent equity power, rather than statutory authority to grant relief from a default. (Id. at p. 750.) The appellate court in discussing whether the trial court had properly granted the defendant relief, observed in passing that defendant’s motion for relief from default was made more than six-months after the default was entered. (Id. at p. 754.) The court of appeal affirmed the lower court’s order granting relief from default, concluding that the defendant had acted promptly once the default judgment had been entered and the defendant’s failure to appear earlier was excusable and did not prejudice the plaintiff. (Ibid.) The opinion also discusses, in dicta, the plaintiff’s failure to properly serve the notice of entry of the default. (Id. at pp. 755-756.)

We do not glean from Slusher the bright line rule urged by the respondent and applied by the lower court here, namely, that notice of the request for entry of default is indistinct from notice of entry for the purpose of the triggering the 180 day rule in section 473.5. The Slusher court did not expressly analyze this issue or implicitly reach the conclusion that the request for default was equivalent to entry of default. Indeed service of the request for default was defective in Slusher; and the plaintiff did not serve notice of entry at all. Because service was not perfected for either the request for entry of default or for the actual entry, it is unclear which of these events (if properly effected) in the view of the Slusher court would have triggered the 6 month limitation to seek relief. In view of the circumstances disclosed in Slusher, the 6 month rule would not have been triggered in any event. Given that the lower Slusher court granted relief based on equitable, non-statutory grounds, the court’s observations concerning the 6 month rule and service of entry of default are superfluous.

The lower court’s treatment of the request for entry of default as synonymous with entry itself is not inherently unreasonable given that the purpose of the time limitations contained in section 473.5 is to provide finality for the party seeking the default judgment and to encourage those seeking relief from its harsh consequences to act promptly upon receiving notice of the proceedings against them. Indeed receipt of the request for entry of default should provide adequate notice that an action is pending and should encourage a prompt response by the party who has yet to appear. Nonetheless, the plain language of section 473.5, subdivision (a) does not support this analysis. If the Legislature had intended service of a request for default to commence the 180 day limitation in section 473.5, subdivision (a), it could have drafted the section to include the request. But such language is not included in the statute. Instead, section 473.5, subdivision (a) clearly states that the 180 day timeframe is commenced by service “of a written notice that the default . . . has been entered.” (§ 473.5, subd. (a); italics added.) Although the entry of a default by the clerk is a ministerial act, which, as here, immediately follows after the request, it is not the equivalent of a request to enter default. Until the default has been entered, the defendant may appear and defend the action without seeking relief from the court to do so. Thus, in accord with the language of section 473.5, subdivision (a) the 180 day limitation to seek relief under section 473.5 is triggered by service of the notice that the default has been entered rather than notice of the request to enter a default judgment.

Accordingly, Rodriguez’s service of the request to enter default did not trigger the 180 day time limitation in which to seek relief from default. Moreover, because there is no evidence in the record before this court that the appellant was ever served with notice of entry of default or notice of the default judgment, appellant had two years from the entry of the default judgment in which to seek relief. The default judgment was entered in February 2006 and appellant filed her motion for relief in June 2006. Consequently, appellant’s motion for relief was timely filed under section 473.5, subdivision (a).

2. Actual Knowledge.

Notwithstanding our conclusion concerning the timeliness of appellant’s motion, as we shall explain, the trial court did not abuse its discretion when it denied relief from the default because appellant failed to demonstrate that she lacked actual knowledge in time to defend the action and that her lack of notice was not caused by her avoidance of service or inexcusable neglect.

Appellant asserts that “actual knowledge” under section 473.5 may only be derived from proper service of the summons and complaint. In addition she argues that service in this case was legally defective because appellant was out of the country when the summons was served and she did not sign the return receipt acknowledging service. Neither of these claims has merit.

First, with respect to appellant’s actual knowledge argument, “actual knowledge” means “genuine knowledge” of the party litigant. (Ellard v. Conway, supra, 94 Cal.App.4th at p. 547.) While actual knowledge can arise from proper service of summons and complaint it can also be derived from other sources of information. (Id. at p. 548 [court found actual notice based on, among other things, evidence of defendants’ conversations with plaintiff’s counsel about the lawsuit]; but see Olvera v. Olvera (1991) 232 Cal.App.3d 32, 40-41 [concluding a defendant is not precluded from seeking relief under section 473.5 where actual knowledge of litigation comes from source other than service of the summons].) Thus, appellant’s claim that she lacked actual notice simply because she was not properly served with the summons and complaint is legally incorrect.

Second, her claim that service was invalid is factually unsubstantiated. Even assuming as appellant argues, that actual notice under section 473.5 can only arise from valid service of the summons and complaint (and not from other sources) appellant has failed to demonstrate defective service of the summons and complaint.

Compliance with service requirements is required under California law. (Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 509 [“Successful service by mail requires strict compliance with all statutory requirements”].) However, it appears such compliance was achieved in this case. Rodriguez served the summons and complaint pursuant to section 415.40, which provides: “[a] summons may be served on a person outside this state in any manner provided by this article or by sending a copy of the summons and of the complaint to the person to be served by first-class mail, postage prepaid, requiring a return receipt. Service of a summons by this form of mail is deemed complete on the 10th day after such mailing.” (§ 415.40.) Service by mail on a defendant outside the state, does not require an executed acknowledgment of receipt. (See Johnson & Johnson v. Superior Court (1985) 38 Cal.3d 243, 254-255.) Nonetheless, proof of service by mail on out-of-state defendants must comply with the requirements of Code of Civil Procedure section 417.20, subdivision (a). (See Stamps v. Superior Court (1971) 14 Cal.App.3d 108, 110 [return receipt marked “unclaimed” will not suffice as a valid proof of service].) This section provides if service is made by mail on an out-of-state defendant “proof of service shall include evidence satisfactory to the court establishing actual delivery to the person to be served, by a signed return receipt or other evidence.” (§ 417.20, subd. (a).)

Because there is no clear defect on the face of the proof of service, to assail its validity appellant was required to make an affirmative showing through admissible, relevant evidence that the proof of service was invalid. (Dill v. Berquist Construction Company (1994) 24 Cal.App.4th 1426, 1441.) She failed to carry this burden. In her affidavit she denies that the signature on the return receipt belongs to her and further claims to have been out of the country when the summons was served. She does not however, deny that the Plantation, Florida address is her proper mailing address, nor does she deny that the person who signed for the receipt for the summons was authorized to accept service on her behalf. Her silence on these matters demonstrates her failure to carry her burden to prove the deficiency in the proof of service.

Here, based on face of proof of service and the declaration of the process server, the lower court did not abuse its discretion when it inferred valid service pursuant to section 415.40. On April 7, 2004, Rodriguez served the summons and complaint on appellant by certified mail, return receipt requested at 7415 N.W. 16th Street, #208B, Plantation, Florida—an address which appellant was known to have used as an active mailing address and where she had the utilities in her name. The return receipt for the summons and complaint contained a signature, which could be that of appellant or her authorized agent. The receipt did not indicate whether the person who signed it was appellant or her agent, but the receipt did indicate that delivery at the address occurred on April 26, 2004. The declaration attached to the service of process further indicates that Rodriguez’s counsel received the return receipt on April 28, 2004. This was sufficient “other evidence” to assure the trial court appellant had received “actual delivery” of the summons and complaint within the meaning of Code of Civil Procedure section 417.20, subdivision (a).

In sum, the court properly observed appellant failed to carry her burden to present competent, relevant evidence that she lacked “actual knowledge” of the action. While her affidavit states that she was out of the country when the summons and complaint was served in April 2004 and did not sign for it, her affidavit does not state she was unaware of the action or that she never received the complaint and summons in time to defend against it. Likewise she did not claim that the Plantation, Florida address was not her mailing address. Finally, appellant’s affidavit is entirely silent on the other aspects of section 473.5, namely she failed to show that any lack of notice was not due to inexcusable neglect or avoidance of service. (Anastos v. Lee, supra, Cal.App.4th at p. 1319 [“A party seeking relief under section 473.5 must provide an affidavit showing under oath that his or her lack of actual notice in time to defend was not caused by inexcusable neglect or avoidance of service”].) Appellant’s affidavit is so bare bones that it is devoid of sufficient information from which one could infer that she is an innocent actor with regard to the service of the complaint. From this evidence and appellant’s omissions in her affidavit, we cannot conclude the court erred when it inferred that appellant likely obtained actual notice of the action either from service of the complaint or from other sources.

B. Section 473

As an alternative basis to set aside the default judgment, appellant relies on section 473 arguing that because the service of the summons and complaint was legally defective the court never obtained personal jurisdiction and thus the judgment against her is void. Respondent contends that appellant waived any argument on appeal under section 473 because her motion for relief from default was based solely on section 473.5. The trial court apparently agreed with respondent. At the initial hearing on the motion the court implicitly rejected appellant’s argument that its motion was also grounded on section 473.

Technically, respondent is correct; appellant’s written motion cites 473.5 as its statutory basis for relief and her written argument is devoted almost exclusively to the issue of actual notice under section 473.5. Section 473 is mentioned only in passing in a quotation to the Ellard case and section 473 does not otherwise appear to be a separate and independent basis for relief, at least not in the moving papers. Thus it appears that appellant’s argument under section 473 is not preserved on appeal. (Eben-King v. King (2000) 80 Cal.App.4th 92, 110-111 [a party may not change his theory or adopt new grounds for relief on arguments not raised in the trial court].)

Nonetheless, even were we to interpret appellant’s arguments below broadly as including a separate claim for relief under section 473, the claim would fail. To obtain relief from the default judgment under section 473, appellant would be required to show that the judgment was void because the service was legally invalid. (Ellard v. Conway, supra, 94 Cal.App.4th at p. 544 [“Under section 473, subdivision (d) the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service”].) However, as discussed elsewhere here in connection with section 473.5, appellant did not carry her burden to prove defective service of process, and thus any attempt to seek relief under section 473 would have been properly rejected by the lower court.

In view of all of the foregoing, we conclude the trial court did not err in denying appellant’s motion to vacate the default judgment.

DISPOSITION

The order is affirmed. Respondent is entitled to its costs on appeal.

We concur: ZELON, J., JACKSON, J.


Summaries of

Rodriguez v. Rodriguez

California Court of Appeals, Second District, Seventh Division
Sep 9, 2008
No. B196836 (Cal. Ct. App. Sep. 9, 2008)
Case details for

Rodriguez v. Rodriguez

Case Details

Full title:VINCENT RODRIGUEZ SR., et al., Plaintiffs, v. LORENA RODRIGUEZ, Defendant…

Court:California Court of Appeals, Second District, Seventh Division

Date published: Sep 9, 2008

Citations

No. B196836 (Cal. Ct. App. Sep. 9, 2008)