Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. D0202280
Reardon, Acting P.J.
Appellant Ra Sop appeals from the order denying his motion to set aside a default judgment from a prior marital dissolution action filed by his wife, respondent Kathy Sop. Appellant argues that the trial court erred in denying his motion to set aside the default judgment, reasoning that (1) he did not have actual notice of the dissolution proceedings; (2) he is due equitable relief; and (3) the trial court erred in granting Kathy Sop’s motion to serve notice by publication. We affirm the judgment.
I. FACTS
In 1998, Ra Sop left California and his family to return to his native country, Cambodia. In 2002, Kathy Sop filed a petition to dissolve their marriage. In an effort to serve Mr. Sop with notice of the dissolution proceedings, she hired Combined Legal Services to locate her husband in Cambodia or California. After several failed attempts to find Mr. Sop, Ms. Sop moved to serve notice by publication. In a declaration dated August 19, 2005, supporting Ms. Sop’s motion, Ms. Sop’s business neighbor, Matthew Pourabedin, declared that on June 1, 2005, he spoke with Mr. Sop who told him that he had knowledge of the pending divorce. In the same conversation, Mr. Sop asked Mr. Pourabedin to fax a notice and acknowledgment of receipt (Judicial Council Forms, form FL-117) to him in Cambodia. Mr. Sop called him back and verified that he received the document; however, he did not sign it and refax it to him. In light of these failed attempts to personally serve Mr. Sop, the lower court granted Ms. Sop’s motion, issuing an order to serve him notice by publication.
In a declaration opposing the motion to set aside the default, the Sops’ son, Karol, and Ms. Sop both declared that Mr. Sop frequently moves from location to location and refuses to provide his address to them, thereby frustrating the service of process. Combined Legal Services’ efforts corroborate this fact. The search included the following fruitless attempts to locate Mr. Sop: (1) checking the records at the California Department of Motor Vehicles; (2) searching social security records; (3) searching the following sources including , and , Contra Costa County and Alameda County telephone directories, and Contra Costa County Assessor’s Office; and (4) hiring a private investigator in California and Cambodia.
We take judicial notice of this form’s content. Specifically, form FL-117 contains boxes to be checked by a plaintiff, delineating which proceeding has been filed against a defendant and if he or she has received notice of it.
Beginning on October 18, 2005, Ms. Sop placed a weekly ad in the Contra Costa Times for four consecutive weeks. During this publication period, Mr. Sop visited friends in the San Francisco Bay Area and also visited with his son, Karol. Karol advised his father to look in the Contra Costa Times, noting that the summons had been published in this paper and he needed to “respond to it immediately.”
Subsequent to publication of the notice, Mr. Sop wrote three letters to Ms. Sop, referring to the dissolution proceeding in one letter and the community property at stake in the marriage dissolution in the other two letters. Specifically, in a letter dated April 21, 2006, Mr. Sop explicitly referred to the divorce, stating “[n]ow you wanted [sic] to divorce me.” On September 5, 2006, the trial court entered default judgment against Mr. Sop after he failed to appear for the dissolution proceeding, awarding Ms. Sop all the community property and custody of the couple’s minor child.
On October 12, 2006, Mr. Sop moved to set aside the default judgment. Following a hearing on the matter, the trial court denied the motion to set aside the default judgment, issuing an order consistent with that decision.
II. DISCUSSION
A. Actual Notice
Mr. Sop argues that the denial of his motion to set aside the default judgment was erroneous, contending that he did not have actual notice of the proceeding. He reasons that the lack of notice enables him to prevail in setting aside the default judgment pursuant to Code of Civil Procedure section 473.5.
All statutory references are to the Code of Civil Procedure.
On appeal, we review an order denying a motion to set aside a default judgment under the abuse of discretion standard. (Anastos v. Lee (2004) 118 Cal.App.4th 1314, 1318.) In our review, we assess the lower court’s finding of fact and “ ‘interpret the facts in the light most favorable to the prevailing party and indulge in all reasonable inferences in support of the trial court’s order’ . . . . [Citation.]” (Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1458.) In doing so, we may affirm the lower court’s ruling if it is supported by substantial evidence in the record on appeal. (Whiteley v. Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 678.)
A party may move to set aside a default judgment under sections 473 and 473.5. Section 473.5, subdivision (a) endows the trial court with authority to vacate a default judgment if “service of a summons has not resulted in actual notice to a party in time to defend the action . . . .” A motion seeking relief from a default judgment must be made before “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.” (§ 473.5, subd. (a)(i), (ii).)
The movant, under section 473.5, must submit an affidavit showing that lack of actual notice was not caused by avoidance of service or inexcusable neglect. (§ 473.5, subd. (b).) A party has actual notice when he or she has genuine knowledge of the action. (Ellard v. Conway (2001) 94 Cal.App.4th 540, 547; Olvera v. Olvera (1991) 232 Cal.App.3d 32, 39.) Actual knowledge is strictly construed to ensure that a court may render its judgment on the merits. (Olvera v. Olvera, supra, at p. 39.)
When summons has been served but does not result in actual notice to a defendant, notwithstanding that a defendant has acquired actual knowledge of the litigation from another source, the trial court retains discretion to grant relief under section 473.5. (Ellard v. Conway, supra, 94 Cal.App.4th at p. 548; Olvera v. Olvera, supra, 232 Cal.App.3d at pp. 40-41.) However, the trial court is not bound to grant relief under all circumstances where a defendant received actual knowledge from a source other than service of summons. (Olvera v. Olvera, supra, at pp. 40-41.)
Here, there is substantial evidence that Mr. Sop had actual knowledge of Ms. Sop’s pending dissolution action against him. Appellant’s son, Karol Sop, declared, and Mr. Sop corroborated, that they met with each other while Mr. Sop was in town from Cambodia in October 2005. While there is conflicting evidence as to what Karol communicated to his father that day, they agree that Karol informed him about the notice by publication ad in the Contra Costa Times which ran while Mr. Sop was in the Contra Costa County area. In his declaration, Karol claimed that he specifically told Mr. Sop that the ad related to the pending divorce with Ms. Sop. Subsequently, Mr. Sop sent three letters to Ms. Sop which explicitly and implicitly addressed the pending divorce. In the April 21, 2006 letter, Mr. Sop explicitly acknowledged the divorce, stating “[n]ow you wanted [sic] to divorce me.” In his February 21, 2006 and May 31, 2006 letters, Mr. Sop also referred to the assets at risk in the marriage dissolution, claiming that he is entitled to his share of the assets. Finally, in a written declaration, Matthew Pourabedin stated that he faxed Mr. Sop an official notice and acknowledgment form pertaining to the pending dissolution action. In June 2005, Mr. Sop received the form and also informed Pourabedin that he knew of the pending divorce. Thus, under the circumstances of this case it is clear that by the time of service by publication, Mr. Sop had sufficient actual knowledge of the action from multiple outside sources, putting him on actual notice in time to defend. (Ellard v. Conway, supra, 94 Cal.App.4th at p. 547.)
However, even if Mr. Sop failed to receive actual notice from Ms. Sop, he did not make a proper showing that he lacked culpability. Mr. Sop was required to provide an affidavit under oath attesting that his failure to defend was not due to avoidance or inexcusable neglect. (§ 473.5, subd. (b); Anastos v. Lee, supra, 118 Cal.App.4th at p. 1319.) He did not provide the court with a proper affidavit and, during the hearing, did not present any evidence that he lacked culpability. Furthermore, while the record alludes to Mr. Sop’s filed declaration negating inexcusable neglect and avoidance of service, it is absent from the record on appeal. We indulge all intendments and presumptions in support of the order denying his motion on matters on which the record is silent, and an appellant must affirmatively show error in order to prevail on appeal. This is not simply a principle of appellate practice, but an ingredient of the constitutional doctrine of reversible error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Shepherd v. Greene (1986) 185 Cal.App.3d 989, 994.) Thus, we conclude that Mr. Sop has failed to affirmatively demonstrate that he satisfied the statutory requirements to show he did not commit inexcusable neglect or avoidance of service. Accordingly, the trial court properly denied the motion. (Anastos v. Lee, supra, 118 Cal.App.4th at p. 1319.)
B. Equitable Relief`
Mr. Sop alternatively contends that he is entitled to equitable relief from the default judgment. In particular, he argues that equitable relief lies because he has suffered from extrinsic fraud or mistake. Ms. Sop urges that Mr. Sop waived the equitable relief argument on appeal because he failed to address it in the trial court. Even if it is properly before us on appeal, Ms. Sop maintains that Mr. Sop cannot furnish a requisite meritorious case or demonstrate that she committed fraud in serving him.
On appeal, a party may present a new theory if it is solely based on a question of law based on undisputed facts. (People v. Carr (1974) 43 Cal.App.3d 441, 444.) However, a party may not present a new legal theory if it contemplates a factual situation that is “ ‘open to controversy’ ” and was not introduced at trial. (Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 879.) This is so because the opponent of the new theory would not reasonably be put on notice to present all its evidence relevant to that theory. (Ibid.) Mr. Sop’s extrinsic fraud or mistake theory fails for precisely this reason.
In any event, the record does not support his theory of extrinsic fraud. Extrinsic fraud arises when one party in some manner has fraudulently been prevented from presenting his or her claim or defense in court. (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1300.) Mr. Sop argues, disjointedly, that Ms. Sop fraudulently deprived him of notice. There is nothing in the record to support an inference that Ms. Sop prevented him from having his day in court. To the contrary, the record supports the fact that Mr. Sop had actual knowledge of the proceedings in time to defend. In short, he cannot invoke the court’s equitable power to set aside the default judgment based on extrinsic fraud. (Id. at pp. 1300-1301.)
C. Service by Publication
Further, Mr. Sop asserts that the trial court erred in granting Mr. Sop’s motion to serve him by publication. Particularly, he claims that Ms. Sop did not make a diligent effort to locate him before moving to serve by publication, alleging that she could have utilized his e-mail address, physical addresses, or telephone numbers.
The record does not support Mr. Sop’s allegation that Ms. Sop failed to utilize current e-mail addresses, addresses and telephone numbers. In fact, he mentions two addresses that were known to Ms. Sop only after the trial court granted the motion to serve by publication. Also, Mr. Sop fails to produce any evidentiary documents in the record or testimony corroborating his allegation that Ms. Sop or their son had his e-mail address. Finally, Ms. Sop testified that she gave all the telephone numbers for Mr. Sop to the investigators and they failed to work. Again, we indulge all intendments and presumptions in support of the judgment on matters on which the record is silent, and an appellant must affirmatively show error in order to prevail on appeal. (Shepherd v. Greene, supra, 185 Cal.App.3d at p. 994.)
Section 415.50 allows service by publication upon an affidavit establishing reasonable diligence by probative facts based on personal knowledge. (Olvera v. Olvera, supra, 232 Cal.App.3d at p. 42; see § 415.50.) In ensuring reasonable diligence, a party must take steps which “a reasonable person who truly desired to give notice would have taken under the circumstances.” (Donel, Inc. v. Badalian (1978) 87 Cal.App.3d 327, 333.) There is no single formula of reasonable diligence that applies in every case. (Ibid.) Honest attempts to ascertain a defendant’s whereabouts by inquiry of relatives, and resort to appropriate directories, registries, and property indices generally will suffice. (Watts v. Crawford (1995) 10 Cal.4th 743, 749 fn. 5.)
Ms. Sop exercised considerable diligence prior to moving for an order to serve notice by publication. She hired a service to track appellant down in Cambodia which invested significant time in attempting to find appellant for service including: (1) searches on international databases; (2) calls to hire a private investigator in Cambodia; (3) local Internet searches; (4) searching records of the California Department of Motor Vehicles, Department of Social Security and Contra Costa County Assessor’s Office; (5) searching all San Francisco Bay Area telephone directories; and (6) searching , and . These efforts sufficed.
III. DISPOSITION
The judgment is affirmed.
We concur: Sepulveda, J. Rivera, J.