Opinion
B159958.
7-22-2003
ALFREDO GUERRA, Plaintiff and Respondent, v. BRIAN TERRY, Defendant and Appellant.
John B. Barriage for Defendant and Appellant. Alfredo Guerra, in pro. per., for Plaintiff and Respondent.
INTRODUCTION
Defendant Bryan Terry appeals from the order denying his motion to set aside the default judgment. We affirm the order.
BACKGROUND
On January 7, 2000, plaintiff filed this action against defendant, alleging, among other things, causes of action for breach of oral contract, fraud, negligent misrepresentation, quantum meruit, unjust enrichment and intentional infliction of emotional distress. A proof of service was filed with the trial court on April 3, 2000. According to the declaration of process server Pete Stevens (Stevens), who claimed an exemption from registration under Business and Professions Code section 22350, subdivision (b), he personally served defendant with a copy of the summons and complaint on March 29, 2000 at 6:12 a.m. at defendants place of residence.
On June 7, 2000, pursuant to plaintiffs request, default was entered against defendant, who failed to answer the complaint. Plaintiff had served defendant with a copy of his request for entry of default.
On August 18, 2000, plaintiff requested entry of default judgment against defendant. The trial court granted the request and entered judgment in favor of plaintiff in the total amount of $ 292,147, consisting of $ 218,400 in damages and $ 73,747 in interest.
On February 21, 2002, defendant filed a motion to set aside the default judgment pursuant to Code of Civil Procedure section 473.5. The stated grounds for his motion were "(1) Service of the Summons did not result in actual notice to Defendant in time to defend the instant action[;] (2) Defendant . . . did not discover that a judgment has been entered against him until February 2002; and (3) Defendant . . . has a meritorious defense to this action and the judgment would otherwise deprive [him] of his due process and opportunity to have this matter litigated on its merits." In his supporting declaration, defendant stated that he was never served with the summons and complaint by anyone and was unaware of this action and the resultant adverse default judgment until February 2002 when he was served with a notice of levy. Defendant thereafter promptly hired an attorney.
Defendant further declared that during the time the summons and complaint were served, he "was spending most, if not all of the nights during such period at [his] girlfriends place, so it [was] nearly impossible for [him] to be at that residence at 6 a.m. in the morning." At that time, defendant also traveled frequently and spent a substantial amount of time in New Jersey. At no time did defendant challenge the propriety of the proof of service or argue it did not meet pertinent statutory requirements. (See, e.g., Code Civ. Proc., § 417.10; Bus. & Prof. Code, § 22360.)
Plaintiff opposed the motion. He declared that after filing his complaint, he enlisted the aid of the Los Angeles County Sheriffs Department, which attempted three times unsuccessfully to serve defendant at his place of residence at a time he reasonably could have been expected to be at home. Thereafter, plaintiff hired a professional process server who personally served defendant with the summons and complaint on March 29, 2000.
Plaintiff, who had known defendant for more than 10 years, had mailed many letters and documents to him at his residence. None was ever returned. Plaintiff served defendant at his place of residence with his request for entry of default. After judgment was entered on August 18, 2000, plaintiff took a copy of the judgment to the County Recorder for recording. On September 9, 2000, plaintiff mailed a copy of the recorded abstract of judgment to defendants home. A clerk at the County Recorders office told plaintiff that a copy of the recorded abstract of judgment would be sent to defendant. Plaintiff subsequently obtained a second abstract of judgment, containing defendants social security number. Plaintiff sent a copy of this second abstract of judgment to defendant on November 14, 2000.
On one occasion, defendant did not claim a certified letter, however.
At the hearing on the motion to set aside the default judgment, the trial court ordered plaintiff to subpoena the process server who served defendant. The court further ordered that defendant be present to testify. The court explained that it did not know that it could make the required credibility determination simply by reading the declarations. It wanted to hear brief testimony as to whether there was actual notice before making its decision. In the courts view, the focal issue was whether there was actual notice.
On May 3, 2002, the date of the continued hearing, plaintiff filed a declaration of due diligence outlining his unsuccessful efforts to secure the appearance of Stevens, the process server who executed the original proof of service. At the continued hearing, defendant testified on his own behalf. After receiving evidence and listening to the arguments of the parties, the trial court took the matter under submission. On May 6, it denied the motion. In its written decision, the trial court referenced the declaration of proof of service that plaintiff had filed. The court found the process servers declaration of personal service to be "evidence of proper, personal service on defendant." The court noted: "In his testimony, defendant admits receiving personal bills and correspondence at [his home] address from March through November 2000. However, he denies receiving any documents concerning the instant lawsuit. In particular, plaintiffs declaration shows that three documents concerning the case were mailed to defendant at [his home] address: the request for entry of default, mailed on June 7, 2000; a copy of the default judgment, mailed on September 9, 2000. It also appears that the County of Los Angeles mailed copies of the default judgment to [defendants home address]. While defendant testified that he received all his personal bills and correspondence at [his home] address, he denies receiving any of these specific documents relating to this case.
Inasmuch as defendant did not designate the reporters transcript of the May 3 hearing for inclusion in the appellate record, his testimony is not before us. On our own accord, we augment the record on appeal to include the trial courts minute order of May 3, 2002.
"Defendants declaration and testimony fail to sustain his burden of proving that his alleged lack of notice in time to defend was not caused by his own inexcusable neglect or avoidance of service. The court finds it highly unlikely that defendant could have received all correspondence regarding personal business at [his home] address, yet received none of the documents mailed to him at that address concerning this lawsuit. At best, even if defendants testimony is taken at face value, the evidence shows that defendant inexcusably failed to open any mail relating to this case. Moreover, such evidence calls into question defendants testimony that he was not personally served, and his testimony that he did not have actual notice of the lawsuit in time to defend.
"The court notes that the law favors determining cases on the merits. However, to set aside the default in the instant case would require ignoring the proof of personal service, and ignoring defendants unsatisfactory testimony concerning his failure to defend this lawsuit. [P] For the foregoing reasons, the motion to set aside the default judgment is denied." This appeal followed.
CONTENTION
Defendant contends the order denying his motion to vacate the judgment must be reversed. We disagree.
DISCUSSION
For the first time on appeal, defendant argues that the presumption of service set forth in Evidence Code section 647 does not apply because Stevens did not check the "Registered California process server" box on the proof of service. Defendant further presents the novel argument that the process servers proof of service was defective in several particulars and therefore was unreliable. Defendant also raises assertions of extrinsic fraud. Defendant did not raise these challenges below. More specifically, defendant did not challenge the propriety of the proof of service or argue it did not meet pertinent statutory requirements. These challenges consequently have been waived. (Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 847.)
Evidence Code section 647 provides that "the return of a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return." Such a presumption is one "established to implement no public policy other than to facilitate the determination of the particular action in which the presumption is applied." (Evid. Code, § 603.) "The effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption. . . ." (Id., § 604.)
In his reply brief, defendant argues that Code of Civil Procedure section 473.5 is inapplicable in this case. This position is somewhat disingenuous, in that defendant in his motion to set aside the default judgment specifically stated he was making his motion "pursuant to California Code of Civil Procedure section 473.5."
In rendering its ruling, the trial court never mentioned the evidentiary presumption enunciated in Evidence Code section 647, the applicability of which presumption defendant did not challenge below. When it was all said and done, the trial court found the process servers declaration of personal service to be "evidence of proper, personal service on defendant" and disbelieved defendants testimony that he had not been served. As the party moving to set aside the default judgment, defendant had the burden of establishing that service of the summons did not result in actual notice to him in time to defend the action. After assessing the evidence, the court found it incredible that defendant received mail pertaining to his personal business at his residence but received none of the documents mailed to his home regarding this lawsuit. It noted that "at best, even if defendants testimony is taken at face value, the evidence shows that defendant inexcusably failed to open any mail relating to this case." As a result, the court questioned the veracity of defendants testimony that he was not personally served and did not have actual notice of this action in time to defend it, characterizing his testimony as "unsatisfactory." Defendant does not challenge the trial courts factual or credibility determinations, nor could he do so successfully given his failure to provide us with an adequate record. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295, 240 Cal. Rptr. 872, 743 P.2d 932.) The presumption that the order denying defendants motion to set aside the default judgment is correct prevails. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, 86 Cal. Rptr. 65, 468 P.2d 193.)
Defendant does not argue that the process servers declaration had no evidentiary value.
See footnote 2, ante.
In light of the conclusion we reach, we need not, and do not, reach the merits of plaintiffs assertion that defendants motion to set aside the default judgment was untimely.
The order is affirmed.
We concur: ORTEGA, J., VOGEL (MIRIAM A.), J.