Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, No. 30-2009-00123721, William M. Monroe, Judge.
Ford, Walker, Haggerty & Behar, and Maxine J. Lebowitz for Defendant and Appellant.
Mains & Clark, and Dana C. Clark for Plaintiff and Respondent.
OPINION
O’LEARY, ACTING P. J.
Richard Kiguelman appeals from an order denying his motion to set aside a default judgment against him. He contends the trial court abused its discretion by denying him relief. We find no error and affirm the order.
FACTUAL AND PROCEDURAL SUMMARY
On May 28, 2007, Kiguelman, a Los Angeles County Sheriff’s Department Deputy, was in an off-duty motorcycle accident with his coworker Deputy John Cuevas. Cuevas was injured; Kiguelman was at fault. Cuevas submitted a claim to Kiguelman’s insurance company, Interinsurance Exchange of the Automobile Club (“AAA”), but found its settlement offer unsatisfactory. Cuevas filed this action against Kiguelman on May 28, 2009.
After three unsuccessful attempts at personal service, Cuevas served Kiguelman by substitute service. On June 9, 2009, the process server first left a copy of the summons, complaint, and other documents with the subpoena control clerk at Kiguelman’s place of business, the Los Angeles County Sheriff’s Department substation in Inglewood, and then mailed copies of those documents via first class mail to the same address.
Kiguelman did not file an answer to the complaint. On August 13, 2009, Cuevas filed a request for entry of default, and the clerk entered default. This first default was later vacated for several reasons, including because the proof of service of the statement of damages was not on file when the default was entered. By November 2009, Cuevas had served Kiguelman by mail with the statement of damages, a new request for entry of default, and a request for court judgment. Cuevas filed the documents on November 25, 2009, and the clerk re-entered default.
A default prove-up package was filed, and on December 2, 2009, the court entered a default judgment for Cuevas for $208,903 plus interest against Kiguelman. The court found Kiguelman had been properly served with process, failed to answer, his default was duly entered, and the judgment amount was based on the evidence submitted by Cuevas.
On September 16, 2010, more than 10 months after the default judgment was entered, Kiguelman filed a motion to set aside the default and default judgment due to extrinsic fraud. He contended he was kept ignorant of the lawsuit due to calculated efforts by Cuevas and Cuevas’s attorney. Kiguelman’s motion was supported by declarations from himself and an AAA claims adjuster.
Kiguelman declared that immediately after the motorcycle accident, he and Cuevas were able to walk their motorcycles to Cuevas’s house. Kiguelman believed his insurer, AAA, was handling the claim. Although he was “allegedly served” on June 9, 2009, by substitute service at his workplace, Cuevas knew Kiguelman “rarely checked [his] mailbox at work....” Kiguelman stated that in October 2009, Cuevas advised him “he was ‘going after [my insurer]’ and not me personally or directly, and I relied on these representations.” Kiguelman stated it was not until June 22, 2010, that AAA contacted him and he became “personally aware of the lawsuit” and the default judgment against him.
Lori Freight, the AAA claims adjuster who handled Cuevas’s claim, declared she had spoken extensively with Cuevas about his claim up until May 22, 2009, when “an offer was made to... Cuevas.” Cuevas’s attorney did not advise AAA about the lawsuit until June 11, 2010 (more than six months after the judgment was entered), and Cuevas never personally told AAA about the lawsuit.
Kiguelman claimed he had a meritorious defense as to the amount of damages. He noted the disparity between Cuevas’s medical expenses ($2,434) and his total judgment ($208,903), arguing the legitimacy of those damages “is highly questionable and unpersuasive.”
In his opposition, Cuevas denied there was any fraud and he asserted the amount of the default judgment was supported by competent evidence. As to Kiguelman’s contention he had no knowledge of the lawsuit until June 22, 2010, Cuevas pointed out Kiguelman had been properly served with the summons and complaint, and all subsequent documents related to the request to enter default and the default prove-up.
Cuevas filed a declaration stating that two or three days before the statute of limitations ran, Freight (the AAA claims adjuster) made her final offer and Cuevas told her he would be filing a lawsuit. He personally told Kiguelman a lawsuit was going to be filed because AAA’s offer was unacceptable. In June 2009, after the lawsuit was filed, Cuevas’s sergeant asked him about the lawsuit documents that had been delivered to the Sheriff’s Department for Kiguelman. After Cuevas explained it was not a work-related incident, the sergeant said he would deliver the documents to Kiguelman. Cuevas then had discussions with Kiguelman in June 2009 in which Kiguelman specifically asked him about the “lawsuit papers” he had received at work.
Cuevas declared that in July 2009, he personally spoke with Kiguelman and told him the complaint had not been answered. Kiguelman told Cuevas he had given the papers to AAA to handle. At the end of 2009, after the default judgment was entered, Kiguelman told Cuevas he had “received papers about a judgment that had been entered for more than $200,000 [and] stated he would be getting an attorney.”
Cuevas denied he knew Kiguelman did not regularly check his Sheriff’s Department mailbox. He stated officers are told they need to check their mailboxes periodically. Furthermore, Cuevas declared, all sheriff’s officers are familiar with subpoenas and lawsuits and understand the significance of legal papers.
Cuevas also asserted the amount of damages awarded was supported by competent evidence, relying upon the evidence submitted in his default prove-up package and considered by the court. The evidence included a declaration from Cuevas explaining that as a result of the accident, he not only missed work, but was placed on “‘light duty’” assignment for many months, which affected his ability to work overtime and, thus, reduced his earnings. He continued to suffer pain and weakness in his ankle as a result of the accident—a permanent and degenerative injury causing ongoing pain—and he would suffer future medical expenses and loss of income as a result of the injury.
The trial court denied the motion to set aside the default judgment, finding there had been no showing of fraud. The court rejected Kiguelman’s claim he did not know he was being sued by Cuevas until June 2010, finding Kiguelman had actual notice of the lawsuit before default was entered. The court accepted Cuevas’s version of events, i.e., that the two men had spoken “about the suit in 6/09 and 7/09.” And although Kiguelman might have believed his insurance company was handling the matter, “that seems to be due to a misunderstanding on [Kiguelman’s] part rather than any deception on [Cuevas’s] part.” The court found Kiguelman “had an opportunity to present his case” and “unreasonably neglected to do so.”
DISCUSSION
Kiguelman contends the trial court erred when it denied his motion to set aside the default and default judgment. We find no error.
Where, as here, a motion to set aside a default and a default judgment is made more than six months after the judgment was entered, a court may grant relief on equitable grounds. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.) In such situations, the court’s equity powers are limited to those situations involving extrinsic fraud or mistake. (Chung Gee v. Quan Wing (1951) 103 Cal.App.2d 19, 21.)
“Extrinsic fraud occurs when a party is deprived of the opportunity to present his claim or defense to the court; where he was kept ignorant or, other than from his own negligence, fraudulently prevented from fully participating in the proceeding.... The essence of extrinsic fraud is one party’s preventing the other from having his day in court.” (City and County of San Francisco v. Cartagena (1995) 35 Cal.App.4th 1061, 1067.) “Relief is denied, however, if a party has been given notice of an action and has not been prevented from participating therein. He has had an opportunity to present his case to the court and to protect himself from mistake or from any fraud attempted by his adversary. [Citations.]” (Kulchar v. Kulchar (1969) 1 Cal.3d 467, 472.)
“We review the court’s denial of a motion for equitable relief to vacate a default judgment or order for an abuse of discretion, determining whether that decision exceeded the bounds of reason in light of the circumstances before the court. [Citation.] In doing so, we determine whether the trial court’s factual findings are supported by substantial evidence [citation] and independently review its statutory interpretations and legal conclusions [citations].” (County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1230.) “‘“Where there is substantial conflict in the facts stated, a determination of the controverted facts by the trial court will not be disturbed”’ on appeal. [Citation.]” (Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1182.)
Substantial evidence supports the trial court’s conclusions Kiguelman had actual notice of the lawsuit in June 2009 and any ignorance regarding the nature of the suit was due to a misunderstanding on Kiguelman’s part rather than any deception by Cuevas. Kiguelman was properly served with process in June 2009, and he was thereafter served with additional court documents on numerous occasions prior to entry of default in November 2009. Cuevas discussed the lawsuit with Kiguelman both before it was filed and after it was served. Moreover, Kiguelman’s attorney conceded below that Kiguelman “actually knew about this case as early as June of 2009[, ]” when arguing Kiguelman knew a lawsuit had been filed, but relied on representations Cuevas was not “going after him personally....”
Furthermore, Kiguelman has not shown diligence in moving to set aside the default judgment. (Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295.) There is evidence supporting the court’s conclusion Kiguelman knew at the end of 2009 that a judgment had been entered against him because he mentioned it to Cuevas saying he would be getting an attorney. Even by Kiguelman’s own version of the facts, he knew about the default judgment in June 2010, but did not move to set it aside until September 2010.
Kiguelman’s prejudice argument is also misplaced. He asserts the amount of damages were “grossly inflated” in view of the nominal medical expenses Cuevas incurred. But there was evidence before the trial court supporting the amount of damages awarded and Kiguelman has offered no basis for disturbing the trial court’s findings in that regard. In short, under the circumstances, we cannot say the trial court abused its discretion by denying equitable relief from the default judgment.
DISPOSITION
The order is affirmed. Respondent is awarded its costs on appeal.
WE CONCUR: MOORE, J., FYBEL, J.