Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 05CC02798 Randell L. Wilkinson, Judge.
Ronald E. Wiksell, Scott Sayre and Bruce G. Schweitzer for Defendant and Appellant.
Vance & Blair and Thomas L. Vance for Plaintiff and Respondent.
OPINION
RYLAARSDAM, J.
Plaintiff Robert Dannenbrink, Jr., gave a ring to defendant Diane Starbuck. Contending that this was a gift in contemplation of an aborted marriage, he sued under Civil Code section 1590 to obtain its return or a money judgment for its value. Defendant failed to answer and the court ultimately entered a default judgment for plaintiff. Approximately a year later, defendant moved to set aside the default and the default judgment contending she was never properly served with the complaint. The trial court denied the motion and this appeal is from that order. The decision of the trial court was based on conflicting evidence and substantial evidence supports its decision. We therefore affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff, contending that he had given a ring to defendant in contemplation of marriage, sued under Civil Code section 1590 to obtain its return or a money judgment for its value. He served defendant by substituted service on Lloyd Gregory, front desk manager, at 225 112th Avenue, N.E., Belevue, Washington and by mailing a copy to her at that address. When defendant failed to file a timely answer, plaintiff requested entry of her default and, after the default was entered, requested a court judgment. Thereafter the court ordered judgment for plaintiff against defendant in the amount of $68,204. The judgment, as thereafter amended to insert an alias for defendant, was entered on September 30, 2005.
On December 22, 2006, defendant filed a motion to set aside the default and the default judgment on grounds that she had never been served. In her declaration filed in support of the motion defendant denied ever having been served and asserted that she never resided at the address where service was effected or told anyone that she did live there. She had never lived in the state of Washington, had a mailing address in that state, or done business there. She did not know Lloyd Gregory, never having met him, nor authorized anyone to accept service on her behalf. Since 1978 she lived continuously at 19502 Surfdale Lane, Huntington Beach, California; plaintiff has known since 1996 that she resided at that address. She “never received notice of any kind that the instant lawsuit had been filed until [she] was served with judgment debtor examination papers on December 13, 2006.” Finally she asserted that she had a meritorious defense to the action in that plaintiff had given her the ring as a Christmas present approximately two months after she met him; it was not an engagement ring, they have never been engaged, announced an engagement, or told any friends they were engaged.
Plaintiff filed four declarations in opposition to the motion that contradicted each of defendant’s factual contentions, particularly as to the nature of the gift stating the ring was an engagement ring. One of these, the declaration of Don Brandenburger, supports plaintiff’s contention that the parties were engaged. As relevant to the motion to set aside the default, the remaining declarations contained the following alleged facts.
Plaintiff stated in his declaration that in March 2003, defendant told him she was going to Washington to care for grandchildren at her daughter-in-law’s home. In December defendant told him during a telephone conversation that her daughter-in-law had passed away and that she and the children would move in with her son at 225 112th Avenue, N.E., Bellevue, Washington 98004. Thereafter plaintiff corresponded with defendant at that address. After May 2004, defendant failed to return his phone calls. A letter he sent by certified mail, return receipt requested, was returned to him.
Rod Blair, plaintiff’s lawyer, stated in his declaration that, when first retained by plaintiff, the latter told him defendant lived with her son at 225 112th Avenue, N.E., Belleview, Washington address and that she owned property and had previously lived at 19502 Surfdale Lane, Huntington Beach, California. He instructed the process server to serve defendant at the Huntington Beach address and attached a “declaration of diligence” (bold and capitalization omitted) signed by the process server indicating unsuccessful attempts to serve her there on five different occasions between February 7 and 26, 2005. Thereafter, he instructed the process server to have defendant served at her Bellevue, Washington address. He attached proof of substituted service on Lloyd Gregory on April 17 at the Bellevue address and appropriate mailing of the summons and complaint to defendant at the same address. The declaration of Joe Goldbaum, a licensed process server, confirmed the five attempts to serve defendant at the Huntington Beach address and his arranging for service at the Washington address.
Documents attached to the declarations show service of at least five documents on defendant, at both the Huntington Beach and the Washington addresses. These documents include: (1) request for entry of default, served May 29, 2005; (2) request for court judgment, served July 13; (3) notice of motion to amend judgment, served August 25; (4) notice of ruling, served September 28; and (5) memorandum of costs, served August 22.
Defendant now raises evidentiary objections to plaintiff’s evidence. These objections are waived because she never made them in the trial court. (People v. Ramos (1997) 15 Cal.4th 1133, 1171.)
After reviewing the evidence, the trial court expressed doubts about defendant’s credibility. The matter was submitted after oral argument and the next day the court denied the motion by minute order. The order states “[t]he court fines [sic] that the defendant has failed to carry her burden to establish extrinsic fraud to support her argument that the court should exercise its equitable power to set aside default. If defendant had not delayed making her motion to set aside, thus taking advantage of the provisions of [Code of Civil Procedure section] 473, the results may have been different. Here, however, the evidence very persuasively shows that no less than three individuals have sworn under penalty of perjury that numerous documents relating to this lawsuit were sent to the address in Huntington Beach, most in 2005, where defendant claims she has resided throughout the course of this litigation. Further, there is circumstantial evidence that even the [c]ounty recorder sent documents to defendant related to this lawsuit to the same address. Thus, this is not simply a matter of [‘]he said, she said.’ Plaintiff has submitted more than sufficient evidence to discredit defendant’s claim that she never knew about this action until she was served in December of 2006, at the same Huntington Beach address, with a notice of judgment debtor hearing.”
DISCUSSION
Courts have inherent, equitable power to set aside a judgment on grounds of extrinsic fraud or mistake. (Moghaddam v. Bone (2006) 142 Cal.App.4th 283, 290-291; Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1300.) Defendant sought relief from the default and default judgment on this basis. There are three essential requirements to obtain relief. The party in default must show (1) a meritorious defense; (2) “a satisfactory excuse for not presenting a defense to the original action”; and (3) diligence in seeking to set aside the default as soon as it was discovered. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 982.)
The ruling of the trial court was based on a finding that defendant did not meet her burden to demonstrate the judgment was obtained by extrinsic fraud. Considering the opposing declarations, this finding is supported by substantial evidence. Plaintiff’s declaration that defendant told him her new address would be in Washington and her receipt of letters from him sent to the Washington address support the court’s finding. But the order indicates the court also based its decision on defendant’s failure to be diligent in seeking to set aside the default. There was substantial evidence supporting this conclusion as well.
Defendant asserted that since 1978 she lived continuously at 19502 Surfdale Lane, Huntington Beach, California. She was served at her acknowledged address with documents indicating a judgment had been entered against her on at least five different occasions between May and August 2005. Yet she did not file her motion to set aside the default and the default judgment until December 22, 2006. The trial court was justified in denying the motion because of defendant’s lack of diligence in seeking to set aside the default.
DISPOSITION
The judgment is affirmed. Respondent shall recover his costs on appeal.
WE CONCUR: SILLS, P. J., ARONSON, J.