Opinion
A130975
01-11-2012
BRIAN M. CARTER, Plaintiff and Appellant, v. GOODWILL INDUSTRIES OF THE GREATER EAST BAY, INC., Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. CIVMSC06-01509)
The assignee of a 2007 default judgment against defendant Goodwill Industries of the Greater East Bay, Inc. (GIGEB) appeals from an order granting GIGEB's motion to set aside the judgment and default on equitable grounds. We affirm the set-aside order based on substantial evidence GIGEB was never served with the summons and complaint, and had no actual notice of the suit until more than two years after the judgment was obtained.
The assignee is the named appellant in this proceeding, Brian M. Carter, who does business as Discovery Judgment Recovery (DJR). We will refer to Mr. Carter by the name of his dba in this opinion.
I. BACKGROUND
A. Service of the Summons and Complaint
Violet Medeiros filed a Judicial Council form complaint for personal injury against "Goodwill Industries" on August 2, 2006. The complaint contained no specific facts regarding when Medeiros's alleged injury occurred, or how or where it occurred. A case management statement filed on May 31, 2007 asserted Medeiros visited a Goodwill store carrying a box of goods for donation. Holding the box with both hands, Medeiros approached the store and pushed its door open with her shoulder. After taking a few steps into the store, Medeiros allegedly fell on her right side. She sustained a broken hip and underwent surgery as a result.
Medeiros filed a proof of service of the summons on November 3, 2006. The proof of service form used, Judicial Council Forms, form POS-040, stated on its face it was not to be used to show service of a summons or complaint. Signed by a "Sal Velasquez" on October 25, 2006, the proof indicates Velasquez served "Goodwill Industries—John Letchford" on September 27, 2006 at 1301 30th Avenue, Oakland, California 94601 at 1:01 p.m., and served the same person or entity at the same address by mail, with no date or place of mailing specified. The proof of service does not specify whether the summons was actually personally delivered to Latchford or served by substitute service pursuant to Code of Civil Procedure section 415.20. The proof of service does not state whether an acknowledgment of receipt of summons was ever mailed or returned, as required by section 415.30. The proof erroneously listed Medeiros's attorney, Maurice Moyal, as the attorney for "Plaintiff—GOODWILL INDUSTRIES."
John Latchford (not Letchford) was the chief executive officer (CEO) of GIGEB at the time, and the California Secretary of State listed 1301 30th Avenue in Oakland as GIGEB's business address. There is no entity named "Goodwill Industries." GIGEB is one of over 200 affiliated nonprofit corporations associated with Goodwill Industries International, Inc. GIGEB is a separate and independent organization governed by its own board of directors.
All statutory references are to the Code of Civil Procedure.
No copy of the summons allegedly served appears in the record on appeal, and the proof of service of the summons contains no attestation, as required by section 417.10, subdivision (a), that the summons contained the notice required by section 412.30. B. The Default Judgment
Section 412.30 requires that in the case of service on a corporation, a prescribed form of notice must be given specifying that the person is being served on behalf of the corporation. Section 412.30 states: "If such notice does not appear on the copy of the summons served, no default may be taken against such corporation . . . ."
On December 15, 2006, Medeiros filed a request for entry of default against "GOODWILL STORES." The request included a proof of service by mail on the same date to "GOODWILL INDUSTRIES JOHN lETCHFORD [sic]" signed by "R. Velazquez." Following a default prove-up hearing on January 23, 2007, the trial court determined no proof of service of a statement of damages had been filed, and set the case for a further case management conference.
On February 9, 2007, Medeiros filed a request for court judgment against "Goodwill Stores" signed by her attorney, Maurice Moyal. The request included a proof of service of the request by mail on "Goodwill Industries" at 1301 30th Avenue, Oakland, California 94601, signed by "Ramona Velazquez" on February 8, 2007. Moyal also filed a statement of damages with two conflicting proofs of service. One proof of service signed by Velazquez states she delivered the statement to a "Mr. Carter" at 1308 30th Avenue in Oakland at 1:00 p.m. on February 7, 2007. That proof of service lists Velazquez's address as 1971 Johnson Drive in Concord. A second proof of service, filed on February 16, also signed by Velazquez, states she personally served "Ken Carter" of Goodwill Industries with the statement of damages on February 8, 2007 at 1:00 p.m. at 1301 30th Avenue in Oakland. Velazquez listed a different location, the address of Medeiros's attorney, as her address in the latter proof of service.
Velazquez also listed her California process server registration number as 644 in both proofs, but she did not state the county in which she was registered as required by section 417.40.
By written decision filed on March 2, 2007, the court voided Medeiros's December 15, 2006 default. Acknowledging the statement of damages filed on February 9 and the proof of service filed on February 16, the court found the default was voided by Medeiros's failure to serve a statement of damages on the defendant prior to the taking of a default. The court ordered Medeiros to comply with section 425.11 prior to filing another default, and set a case management conference for April 3, 2007. The clerk's proof of service of the court's decision stated it was mailed on March 2 to "Ken Carter" at Goodwill Industries, 1301 30th Avenue, Oakland, California, 94601.
Section 425.11, subdivision (c) requires that a statement of damages in a personal injury case be served before a default is taken. Subdivision (d) of the statute requires that the statement be served in the same manner as a summons if the defendant has not appeared in the action.
No one appeared at the April 3 case management conference. A minute order entered on that date included the following notation: "This department received a telephone call from Art Sullivan of Goodwill Industries prior to the calendar, wherein he informed the court that he was unaware of this case. The clerk shall return the call and give him the new date."
In a letter dated April 4, 2007, Moyal informed the court he had missed the conference due to illness, and plaintiff Medeiros had passed away on March 12, 2007. On April 12, 2007, Medeiros's daughter, Sheila Devine—represented by Moyal—opened a probate case and requested to be appointed administrator of her mother's estate. Although Devine was named administrator, the case against Goodwill continued with Medeiros as the named plaintiff.
On July 2, 2007, the court directed Moyal to refile the default and set it on calendar after proper notice was served. A request for entry of a default judgment against "Goodwill Industries" in the amount of $200,720 was signed by Moyal on that date. A proof of service indicated the request was mailed the same day to "Art Sullivan/Senior Director Human Resources" at 1301 30th Avenue, Oakland, California at the erroneous ZIP code of "945601-2208." Ramona Velazquez signed the declaration of mailing. On August 27, 2007, the court entered a default.
The statement of damages served on February 7, 2007 had listed a total of $137,417.65 in damages.
The correct ZIP code for GIGEB's offices is "94601-2208."
On September 4, 2007, the court held a case management conference. The defendant did not appear. The court set a default prove-up hearing for October 19 and directed Moyal to notify defendant of the hearing date. There is no evidence in the record Moyal attempted to notify GIGEB or "Goodwill Industries" of the hearing. The court mailed notice of the October 19 default hearing to plaintiff only. Moyal filed a brief with the court on the date of the hearing which was not served on defendant. GIGEB did not appear at the hearing. After hearing testimony from Sheila Devine, the court found in favor of plaintiff, awarding special medical damages of $80,417.65, and pain and suffering damages of $50,000.
On December 12, 2007, Moyal filed a request for court judgment in the amount of $130,417.65. The attached proof of service was blank. Judgment in that amount was entered by the court on December 26, 2007. No proof of service was filed or attached. C. Post-judgment Proceedings
On January 11, 2010, Sheila Devine, as administrator of Medeiros's estate, filed an assignment of the December 26, 2007 judgment to DJR making DJR the assignee of record and judgment creditor for all purposes. Also on January 11, DJR filed a writ of execution against "Goodwill Industries" and a declaration of accrued interest on the judgment of $26,690.31. On February 24, 2010, DJR lodged papers with the court in support of an ex parte motion to amend the judgment to show GIGEB was an alternative name for "Goodwill Industries" so that its judgment would be enforceable against GIGEB. (See §§ 473, subd. (d), 680.135, 699.510, subd. (c)(1).) DJR served the moving papers on GIGEB on February 24, 2010, by mailing them to 1301 30th Avenue, Oakland, CA 94601-2208, to the attention of GIGEB's CEO, John B. Latchford. GIGEB alleges it had no notice or knowledge of this action until its receipt of DJR's February 24, 2010 mailing.
At some point after the assignment was executed by Devine, attorney Moyer passed away.
The court denied DJR's ex parte motion without hearing. GIGEB moved on June 2, 2010 to set aside the default and default judgment on multiple grounds including: (1) the default and judgment were entered against a nonexistent entity, (2) lack of service on GIGEB or the named defendant, and (3) an improper award of pain and suffering damages to a deceased plaintiff.
Over DJR's objection, the trial court set an evidentiary hearing on GIGEB's motion. DJR objected to the hearing on the grounds, among others, that (1) the court had no jurisdiction or discretion to set aside the judgment under section 473.5 because the two-year statute of limitations to set aside a judgment for failure to give proper service had already expired; (2) GIGEB had tendered inadequate evidence to support a claim of extrinsic fraud or mistake (such as a falsified proof of service); and (3) to the extent GIGEB was claiming the judgment was void on the face of the record, no evidentiary hearing was required. D. The Evidentiary Hearing
Section 473.5 provides in relevant part: "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."
GIGEB called three witnesses to testify at the evidentiary hearing: John Latchford, Walter Carter, and Arthur Sullivan. DJR called no witnesses.
Latchford had been GIGEB's president and CEO for 10 years. He could not recall ever being personally served by a process server during his tenure at GIGEB. On September 27, 2006, the date DJR contends he was personally served with the summons and complaint, Latchford was on vacation from his job, celebrating his 30th wedding anniversary in Boston. A GIGEB timecard for the period in question, admitted into evidence over DJR's objection, showed Latchford was on vacation from Monday, September 25, 2006 through Friday, October 6, 2006. Latchford also denied receiving the December 15, 2006 request for default. Latchford testified he first became aware of the Medeiros lawsuit in February 2010, when he received a package delivered by general mail containing information about it. His staff later reported to him GIGEB had no internal records of the lawsuit, and none of its insurance carriers or brokers were aware of it either. Although GIGEB tracks incidents in its stores under its loss prevention program, no record of an incident like that alleged in the lawsuit was found.
GIGEB also sought admission of a copy of an Internet travel itinerary confirming a Marriott hotel reservation for John Latchford in Boston from September 23 to September 28, 2006. The document was not admitted in evidence.
Walter Carter was employed as GIGEB's chief financial officer (CFO) in 2006, and left GIGEB's employ in May 2007. Carter could not recall receiving the statement of damages that, according to the two proofs of service signed by Ramona Velazquez, had been delivered to "Mr. Carter" at 1308 30th Avenue in Oakland on February 7, 2007 at 1:00 p.m., and to "Ken Carter" at 1301 30th Avenue on February 8, 2007 at 1:00 p.m. Carter could not recall ever being personally served with legal documents while with GIGEB or at any other time. Although DJR documented Carter was listed with the California Secretary of State as GIGEB's agent for service of process at the time, Carter was unaware of that designation.
Arthur Sullivan was employed by GIGEB in 2006 as the senior director of human resources. Sullivan described the protocol he was to follow if he received any documents concerning a lawsuit, which was to notify the CEO and/or the CFO and GIGEB's insurance broker and carriers. He had never deviated from that practice. On cross-examination, Sullivan acknowledged he was known and referred to as "Art Sullivan" within GIGEB. E. Trial Court Ruling
The trial court found as a fact that the process server who signed the proof of service showing personal service of the summons and complaint on Latchford on September 27, 2006 lied. That false statement, and the numerous other errors and omissions in the various proofs of service so tainted the process that GIGEB was entitled to have its default and the judgment against it set aside. By written order entered on November 15, 2010, the court ordered GIGEB be allowed to appear in place of "Goodwill Industries," deemed GIGEB served with the complaint, and ordered GIGEB to file a responsive pleading within 10 days.
DJR timely appealed from the court's order.
II. DISCUSSION
A. Applicable Law
"A summons is the process by which a court acquires personal jurisdiction over a defendant in a civil action. . . . Notice of the litigation does not confer personal jurisdiction absent substantial compliance with the statutory requirements for service of summons." (MJS Enterprises, Inc. v. Superior Court (1984) 153 Cal.App.3d 555, 557.) Improper service of a summons thus constitutes a jurisdictional defect that undermines the validity of a default judgment. (Sakaguchi v Sakaguchi (2009) 173 Cal.App.4th 852, 858.) If the original service of process fails to confer personal jurisdiction, all that follows is void. (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 809.)
"While partial compliance may sometimes be determined to be substantial and therefore sufficient, liberal construction cannot cure a plaintiff's complete failure to comply with statutory requirements when attempting to serve a defendant." (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439, fn. 12 (Dill).)
Although the filing of a proof of service creates a rebuttable presumption service was proper, no such presumption arises if the proof fails to comply with statutory requirements regarding such proofs. (Dill, supra, 24 Cal.App.4th at pp. 1441-1442.)
The recent case of Trackman v. Kenney (2010) 187 Cal.App.4th 175 (Trackman) provides an overview of the possible avenues by which a party not properly served with a summons may pursue relief from a default judgment. (Id. at pp. 180-181.) First, the party may bring a motion under section 473.5, subdivision (a), which applies "[w]hen service of a summons has not resulted in actual notice to a party in time to defend the action." However, such a motion must be brought within a "reasonable time" not to exceed the earliest of either two years after entry of the default judgment or 180 days after service of written notice that the default or default judgment has been entered. Such a motion does not require a showing the plaintiff did anything improper. (Trackman, at p. 180.) In this case, relief under section 473.5 is unavailable because GIGEB's June 2010 motion was filed more than two years after the December 2007 entry of the default judgment.
Section 473, subdivision (d) provides a second avenue for relief from a default judgment based on improper service. (Trackman, supra, 187 Cal.App.4th at p. 180.) That statute provides in relevant part as follows: "The court may, . . . on motion of either party after notice to the other party, set aside any void judgment or order." There is no time limit for bringing an action under subdivision (d) if the judgment can be shown to be invalid on the face of the record. (Trackman, at p. 181.) " 'A judgment or order is said to be void on its face when the invalidity is apparent upon an inspection of the judgment-roll.' [Citation.] In a case in which the defendant does not answer the complaint, the judgment roll includes the proof of service." (Dill, supra, 24 Cal.App.4th at p. 1441.)
However, where a party moves under section 473, subdivision (d) to set aside a judgment that, although facially valid, is void for lack of proper service, the courts have applied a two-year statutory time limit for bringing such motions, by analogy to the two-year statutory time limit for motions under section 473.5. (Trackman, supra, 187 Cal.App.4th at p. 180.) For the reason stated earlier, such a motion would not have been timely here.
Finally, a court has the inherent authority to set aside a default judgment based on nonstatutory, equitable grounds "if it has been established that extrinsic factors have prevented one party to the litigation from presenting his or her case." (In re Marriage of Park (1980) 27 Cal.3d 337, 342.) There is no fixed time limit for seeking relief from a default judgment on equitable grounds. Thus, the judgment debtor "can show 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." (Trackman, supra, 187 Cal.App.4th at p. 181, italics added.) "In addition to providing proof that a judgment or order is void, a false return of summons may constitute both extrinsic fraud and mistake. [Citation.] When a judgment or order is obtained based on a false return of service, the court has the inherent power to set it aside [citation], and a motion brought to do so may be made on such ground even though the statutory period has run." (County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1229 (Gorham).)
Because of the strong public policy in favor of the finality of judgments, equitable relief from a default judgment or order is available only in exceptional circumstances. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 982 (Rappleyea ).) To set aside a default judgment on equitable grounds, three requirements must be satisfied: " 'First, the defaulted party must demonstrate that it has a meritorious case. Second[ ], the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Last[ ], the moving party must demonstrate diligence in seeking to set aside the default once . . . discovered.' " (Ibid.)
We review a court's order granting or denying equitable relief from a judgment for abuse of discretion. (In re Marriage of Wipson (1980) 113 Cal.App.3d 136, 141; In re Marriage of Guardino (1979) 95 Cal.App.3d 77, 87.) In doing so, we will uphold the trial court's factual findings if they are supported by substantial evidence, but we independently review its statutory interpretations and legal conclusions. (Gorham, supra, 186 Cal.App.4th at p. 1230.) All presumptions are in favor of the correctness of the order and the burden is upon the appellant to show the court abused its discretion. (McCreadie v. Arques (1967) 248 Cal.App.2d 39, 44-45.)
"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." (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478.) B. Analysis
DJR attacks the trial court's order granting GIGEB equitable relief from the judgment on multiple grounds: (1) there was no legal basis for holding an evidentiary hearing on a motion filed more than two years after entry of the judgment; (2) the documentary evidence offered by GIGEB's CEO—his September 2006 timecard and Marriott hotel itinerary—were inadmissible; (3) even if the initial service of process failed, GIGEB was served with the statement of damages in February 2007, and had no excuse for failing to act promptly at that time; and (4) the trial court should have ruled on whether GIGEB was the true defendant before allowing it to proceed with its motion to set aside the judgment.
DJR asserts, "Where more than 2 years has passed since entry of the default judgment, the standard of review does not allow for extrinsic evidence," and "[i]f the proofs are service are facially valid, then the judgment is not void, and it must be allowed to stand." According to DJR, the court could not consider such evidence because GIGEB had not alleged extrinsic fraud in its motion to set aside the default judgment. DJR's statement of the law is wrong on both counts. Equitable relief from a default judgment on grounds of extrinsic fraud or mistake (such as a falsified proof of service) is available at any time if the requirements set forth in Rappleyea are satisfied. (Trackman, supra, 187 Cal.App.4th at p. 181; Gorham, supra, 186 Cal.App.4th at p. 1229.) Further, even if a party bases its motion for relief solely on statutory grounds, the trial court has the power to treat the motion as one for equitable relief. (See Billings v. Edwards (1981) 120 Cal.App.3d 238, 245, and cases cited therein [" 'Even though a party seeking relief from default bases his motion solely on section 473 . . . , the court has power to treat the motion as one for equitable relief' "].)
Even if extrinsic evidence was otherwise permissible, DJR insists the documentary evidence GIGEB submitted to rebut the proof of service of the summons and complaint was improper hearsay. We note the hotel itinerary was not in fact admitted into evidence. The timecard was admitted as a business record. Arthur Sullivan, who was GIGEB's senior director of human resources in September 2006, testified about how timecard records were prepared, approved, and maintained. In our view, admission of the timecard was within the trial court's discretion. In any event, DJR cannot show prejudice. The timecard merely corroborated Latchford's testimony he was out of town when the summons and complaint was allegedly personally served on him and was never in fact served with either document. That testimony by itself constituted substantial evidence supporting the trial court's finding that the proof of service on Latchford was false and fraudulent. We are therefore bound by that finding without regard to the admissibility of the timecard. (Gorham, supra, 186 Cal.App.4th at p. 1230.)
Even assuming GIGEB was not served with the summons and complaint in September 2006, DJR maintains GIGEB is not entitled to equitable relief because it failed to offer a defense or move promptly to remove the default after it was allegedly served with the statement of damages in February 2007. DJR's argument seems to assume there was no dispute about whether a statement of damages was in fact served on GIGEB in February 2007. As the trial court itself commented after the evidentiary hearing, the evidence Latchford was out of town when he was assertedly served with the summons and complaint, combined with a court file "replete with errors" in the plaintiff's filings and proofs of service "raises a taint throughout the entire process." With respect to proof of service of the statement of damages in particular, the record contains two conflicting proofs showing personal service on a "Mr. Carter" and a "Ken Carter" at two different addresses on two different dates, both occurring at 1:00 p.m. The process server, Ramona Velazquez, listed different addresses for herself on each proof and failed to identify the county in which she was allegedly registered. In our view, no rebuttable presumption of proper service of the statement of damages arises from these conflicting and incomplete documents. (Dill, supra, 24 Cal.App.4th at pp. 1441-1442.) Since DJR did not produce the person who signed the two proofs of service to testify, there was no substantial evidence before the court the statement of damages had been served on GIGEB. On the other hand, Walter Carter's testimony he did not recall being served with such a document and could not recall ever being personally served with legal documents while employed by GIGEB constituted substantial evidence no service was made. We therefore find the premise of DJR's argument—that GIGEB had actual notice of the lawsuit and a consequent duty to act promptly to protect its interests as of February 2007—to be unsupported by the record.
DJR argued in the trial court that it was GIGEB's burden to bring in Ramona Velazquez and impeach her assertions under penalty of perjury in the various proofs of service. We disagree. GIGEB satisfied its burden, if any, of rebutting Velasquez's proofs of service by producing witnesses with personal knowledge the assertions made in them were false. At that point, it was up to DJR to produce Ms. Velazquez if she could contradict GIGEB's witnesses. The court was entitled to draw adverse inferences from DJR's failure to offer her testimony or explain her absence. (See, e.g., Gonzalez v. Southern Pacific Co. (1958) 157 Cal.App.2d 733, 740.)
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DJR also asserts GIGEB was on notice of the proceedings and had no satisfactory excuse for failing to act promptly after April 2007 because an April 3, 2007 minute order included a notation that "Art Sullivan of Goodwill Industries" had called the court stating he was unaware of the case. The minute order also reflects that the court directed the clerk to return the call and give Sullivan a date regarding the next scheduled case management conference. DJR complains the court failed to take judicial notice of this minute order, which was entered three years earlier by a different judge. DJR in fact cites no place in the record where it requested the court take judicial notice of the minute order, and we have found none. In any event, a court cannot take judicial notice of the truth of hearsay allegations simply because they are part of the court record or file even if the declarant was a judge. (Kilroy v. State of California (2004) 119 Cal.App.4th 140, 145-146.)
While intriguing, the April 3 minute order thus was not evidence that Sullivan had contact with the court clerk about the case in April 2007, or that GIGEB must therefore have had actual notice or knowledge of the lawsuit at that time. DJR made no attempt to produce such evidence. DJR neither called the clerk as a witness nor, when Sullivan appeared as GIGEB's witness, did it cross-examine Sullivan about contacts he might have had with the court in April 2007. In fact, Sullivan described the protocol he followed whenever he received notice of a lawsuit at GIGEB, and testified he had never deviated from his practice of promptly notifying GIGEB's CEO, CFO, and its insurance brokers and carriers.
DJR argues the trial court should have first ruled on whether GIGEB was the "Goodwill Industries" named in the complaint before entertaining its motion to set aside the default. DJR implies the validity of its proofs of service could not have been questioned if the court had ruled GIGEB was the entity sued. That is not the case. The judgment could only be enforced against GIGEB if GIGEB was properly served and reasonably should have known it was the entity sued as "Goodwill Industries." (See Canifax v. Hercules Powder Co. (1965) 237 Cal.App.2d 44, 57-58; Sakaguchi v. Sakaguchi, supra, 173 Cal.App.4th at p. 856.) There is no rule dictating the latter determination be made first. To the contrary, unless GIGEB was in fact served, the question of whether it had reason to understand it was the party being sued notwithstanding the plaintiff's naming error does not arise.
Substantial evidence supports the trial court's express and implied findings on extrinsic fraud that the summons and complaint were never served on GIGEB, the proof of service filed with the court was falsified, and the default judgment was entered by the court based on false pretenses. The exceptional circumstances required for granting equitable relief under Rappleyea also existed. DJR concedes GIGEB established it had a meritorious defense to the Medeiros complaint. GIGEB had a satisfactory excuse for not presenting a defense to the original action—its lack of notice of the suit—and once it learned of the suit in February 2010 it acted diligently in seeking to set aside the default. DJR failed to meet its burden of showing the trial court committed any prejudicial error of law or abused its discretion in granting GIGEB equitable relief from the judgment.
III. DISPOSITION
The November 15, 2010 order granting GIGEB's motion to set aside the default judgment and default is affirmed, and the matter is remanded to the trial court for further proceedings consistent with the order.
Margulies, J. We concur: Marchiano, P.J. Dondero, J.