Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG05222226.
Pollak, J.
Defendant Mohsin Sharif, appearing in propria persona, appeals from an order denying his motion to set aside his default and the default judgment entered on plaintiff Jamal Sanad’s complaint to collect on a promissory note. He contends the trial court abused its discretion in finding that his motion was untimely and by failing to investigate his claim of fraud. We affirm.
Background
On July 12, 2005, Sanad filed a complaint against Sharif, individually and doing business as Saad Currency Exchange (Saad), alleging that he lent Sharif $100,000 and that despite his requests, the demand promissory note had not been repaid. The proof of service filed with the court shows that the summons and complaint were served on Sharif by substitute service on Lonnie Marbley, who apparently was in charge of Saad, at 6311 International Boulevard in Oakland, California. Sharif’s default was entered on October 25, 2005. In April 2006 the case was dismissed when Sanad failed to appear for a case management conference. The dismissal was vacated shortly thereafter when it became apparent that the court had not given Sanad notice of the hearing. Once the action was reinstated, the court ordered Sanad to re-serve the complaint.
Ali Saad, who was also named as a defendant in the complaint, was dismissed from the action and is not a party to this appeal.
On September 4, 2006, the complaint, which had been amended to add additional aliases for Sharif and Saad, was served on Sharif by substitute service on his mother, Maria Sharif, at the home she allegedly shared with Sharif located at 695 34th Street in Oakland. Sharif’s default was entered on November 28, 2006, and then again on December 6, 2006. Sanad explains that due to an error in the clerk’s office Sharif’s November 28 default, although filed, was not entered into the register of actions. When Sanad learned of the mistake, he contacted the judge, who in April 2007 entered Sharif’s default nunc pro tunc as of December 6, 2006. On February 16, 2007, his default notwithstanding, Sharif filed a demurrer to Sanad’s complaint, which was noticed for a hearing in April 2007. Sanad opposed the demurrer on the ground that Sharif’s default had been entered in November 2006. The court’s tentative ruling directed the parties to appear at the hearing, but when Sharif failed to appear, his demurrer was dropped from the calendar.
Three days later Sharif filed an answer to Sanad’s complaint. The answer was never served on Sanad, but on August 16, 2007, Sanad moved to strike Sharif’s answer on the ground that his default had already been entered. Sanad also requested entry of judgment by default. Sharif opposed the motion on the ground that his default had not been entered. Apparently misunderstanding the difference between the entry of default and the entry of a default judgment, he attached to his opposition numerous court documents showing Sanad’s prior unsuccessful attempts to have judgment entered by default. On September 12, 2007, the court granted Sanad’s motion to strike Sharif’s answer. The court explained, “Defendant [Sharif], who was in default when he filed his answer on April 26, 2007 and who remains in default, may not amend or file any other pleading or proceeding in this case.” The court also ordered the “immediate entry of judgment by default.” On September 25, 2007, defendants were served with notice of the default judgment.
On February 20, 2008, Sharif filed a motion to set aside his default and the default judgment. The motion was made “on the ground that each default upon which plaintiff relied upon [sic] to obtain the default judgment was obtained by means of a fraud practiced by plaintiff on the court and was, thus, void. In the alternative, relief is sought pursuant to Code of Civil Procedure §473(d) on the ground that defendant Mohsin Sharif committed excusable mistake when, on February 7, 2007, he filed a demurrer rather than this motion because he relied upon the court clerk’s representation that no default was pending in this case.”
On April 9, 2008, the court denied the motion. The court explained, “The preponderance of the evidence shows that the substituted service on September 4, 2006 followed by mail service on September 11, 2006 was valid. Default was properly entered on December 6, 2006. The court did not reject the request for entry of default on February 5, 2007; only the request for default judgment was rejected. Defendant does not contend that he did not receive the service on September 4 and September 11, 2006. [¶] Defendant waived any objections to service, and submitted to the court’s jurisdiction, by filing a demurrer on February 7, 2007, in which he failed to challenge the sufficiency of [the] service. The answer filed on April 26, 2007 also constitutes a waiver of any claim of improper service. Defendant’s opposition to the motion to strike his answer, filed on August 30, 2007, also makes no mention of insufficient service. [¶] Based on the series of general appearances starting on February 7, 2007, the court had personal jurisdiction over defendant at the time judgment was entered on September 12, 2007, and the judgment is not void. [¶] Defendant was specifically advised in plaintiff’s opposition to demurrer served in March 2007 that his default had been taken on November 28, 2006. Defendant was ordered to appear at the hearing on his demurrer and failed to do so. Defendant was specifically advised in plaintiff’s motion to strike his answer that his default had been taken. Even after the court rejected defendant’s arguments and entered judgment on September 12, 2007, defendant waited over 5 months to file a motion seeking relief from default and default judgment. Thus, to the extent defendant is seeking relief for default and/or default judgment based on mistake, inadvertence, surprise or excusable neglect, the motion is untimely because it was filed more than 6 months after the default, and because it was not filed within a reasonable period of time after entry of the default or default judgment.”
On May 22, 2009, defendant filed a notice of appeal purporting to appeal both the entry of default judgment and the denial of his motion to set aside the default and default judgment. Plaintiff filed a motion to dismiss the appeal that was granted with respect to the default judgment but denied with respect to the order denying defendant’s motion to set aside the default and the default judgment.
Discussion
Sharif sought to set aside his default and the default judgment under both Code of Civil Procedure section 473 and the court’s inherent equitable authority. Under section 473, subdivision (b), “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Italics added.) “[T]he six-month period runs from the date of entry of default rather than from the date of entry of the default judgment.” (Weiss v. Blumencranc (1976) 61 Cal.App.3d 536, 541.) Sharif’s default was entered in November and again in December 2006 and his motion to set it aside was not filed until February 20, 2008. Because Sharif did not file his motion for relief until more than a year after his default had been entered, he was not eligible for relief under section 473.
All statutory references are to the Code of Civil Procedure.
“ ‘Where, as in the present case, a motion to vacate a default judgment is made more than six months after the default was entered, the motion is not directed to the court’s statutory power to grant relief for mistake or excusable neglect under section 473, but rather is directed to the court’s inherent equity power to grant relief from a default or default judgment procured by extrinsic fraud or mistake.’ [Citations.] [¶] ‘The court may grant relief under its inherent equity power if, because of the fraud of his opponent, the aggrieved party was prevented from presenting his claim or defense to the court. [Citations.] “Two essential conditions are found in a classic case in equity which seeks to set aside a judgment: first, the judgment is one entered against a party by default under circumstances which prevented him from presenting his case; second, these circumstances result from extrinsic fraud practiced by the other party or his attorney.” [Citation.] The vital question is “whether the successful party has by inequitable conduct, either direct or insidious in nature, lulled the other party into a state of false security, thus causing the latter to refrain from appearing in court or asserting legal rights.” [Citation.] A party who seeks to have his default vacated under the court’s equity power must make a stronger showing than is necessary to obtain relief under section 473. [Citation.] “[D]uring the period when relief under section 473 is available, there is a strong public policy in favor of granting relief and allowing the requesting party his or her day in court. Beyond this period there is a strong public policy in favor of the finality of judgments and only in exceptional circumstances should relief be granted.” ’ [Citation.] [¶] As a panel from the Fourth Appellate District recently explained: ‘Extrinsic fraud occurs when a party is deprived of his opportunity to present his claim or defense to the court, where he was kept in ignorance or in some other manner fraudulently prevented from fully participating in the proceeding. [Citation.] . . . On the other hand, ‘Fraud is intrinsic and not a valid ground for setting aside a judgment when the party has been given notice of the action and has had an opportunity to present his case and to protect himself from any mistake or fraud of his adversary, but has unreasonably neglected to do so. [Citation.] Such a claim of fraud goes to the merits of the prior proceeding which the moving party should have guarded against at the time.’ [Citation.] [¶] In conjunction with his or her showing of ‘extrinsic fraud,’ a party seeking equitable relief from a default judgment must satisfy three elements: ‘First, the defaulted party must demonstrate that it has a meritorious case. Secondly, the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Lastly, the moving party must demonstrate diligence in seeking to set aside the default once . . . discovered.’ ” (Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 314-315.)
Sharif argues that his default should be set aside because the substitute service upon which the default was based was fraudulent. The proofs of service filed with the court show that Sharif was served by substitute service to Lonnie Marbley at 6311 International Boulevard in Oakland and to Maria Sharit, Sharif's mother, at 695 34th Street in Oakland. Sharif asserts that “he never and could not have resided or done any business at 6311 International Blvd., Oakland, California 94621 because this address did not and does not exist” and that “he did not know anyone by the name of Lonnie Marbley who allegedly accepted service on his behalf.” In addition, he asserts that his mother’s name is Mariam Mohamed Saleh, not Maria Sharit, and that “his mother did not speak or understand English when the process was allegedly served because she only speaks Arabic.” We need not consider the sufficiency of these allegations to establish a defect in service because the trial court denied Sharif’s motion based on his lack of diligence in seeking relief after he became aware that his default had been entered.
Sharif argues that his delay in moving to set aside his default was reasonable in light of the lengthy, complicated procedural history of the case. He claims that it was not until the hearing on September 12, 2007, that the court “confirmed that the default had been taken on December 6, 2006” and that he did not obtain the documentary evidence demonstrating the fraudulent service until January 18, 2008. While the procedural history of this case undoubtedly was complicated by the failure of the clerk’s office to enter the November 28, 2006 default into the register of actions, the complications did not prevent Sharif from learning of the default or prevent him from taking action within a reasonable time. Even assuming that the clerk’s error resulted in some confusion with regard to the filing of the demurrer, Sanad’s motion to strike filed in August 2007 clearly and unambiguously put Sharif on notice that his default had been taken in November and December 2006. Sharif does not dispute that the motion to strike was properly served on the address Sharif used when filing his demurrer and answer. The fact that he apparently misunderstood the significance of the entry of default does not excuse his failure to act. (Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1055 [“It is the duty of a trial judge to see that a cause is not defeated by the mere inadvertence of a lay litigant, but such litigant is restricted to the same rules of procedure as is required of those qualified to practice before our courts”].) As Sharif acknowledges, at the hearing on September 12, 2007, the court confirmed that his default had been taken in December 2006. Nonetheless, Sharif delayed an additional five months before seeking any relief. Moreover, as the trial court observed, Sharif did not deny that he received notice of the action in September 2006 and he thereafter made a number of general appearances. Thus, any potential fraud or insufficiency in connection with the initial service of summons did not preclude his participating in the action or excuse his failure to make a timely application for relief from the default. The trial court did not abuse its discretion in determining that Sharif’s delay was unreasonable and in denying his motion to set aside the default and default judgment.
Disposition
The order denying Sharif’s motion for relief from default is affirmed. Sanad shall recover his costs on appeal.
We concur : McGuiness, P. J., Siggins, J.