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No evidence that Pamela and Paula were the same person . . .
In affirmance, Fifth District holds that trial court did not err in granting motion to set aside six-year-old default and default judgment against respondent on basis that she was not properly served because judgment was in someone else’s name, and respondent did not receive notification of ex parte order changing name on judgment to hers
Manson, Iver & York v. Black
(July 30, 2009) |
California Court of Appeal, 5 Civil F056749, 176 Cal.App.4th 36, 97 Cal.Rptr.3d 522, per Hill, J (Vartabedian, Acting PJ, and Kane, J, concurring). Kern County: Palmer, J, affirmed. For appellant: Sandra Kuhn McCormack, 805-325-8163. For respondent: pro per. CFLP §T.27. |
After he was involved in an auto accident in March 1999, Robert Flint filed a personal injury suit against the driver of the other vehicle, Douglas Shinn, and its alleged owner, Pamela Black. On April 16, 1999, Flint personally served Paula Black with the summons and complaint. Thinking she’d been served by mistake, Black called Flint’s attorney to tell him that she hadn’t been in an accident, she didn’t know Douglas Shinn, and she believed she’d been served by mistake. When Black failed to file a response to the complaint, Flint obtained entry of her default on June 4, 1999; the trial court entered a $15,000 default judgment against her on August 4.
On May 6, 2005, Flint assigned his interest in the judgment to Manson, Iver & York (MIY). Two months later, Flint filed an ex parte application to amend the judgment, claiming that he’d only recently learned that the owner of the vehicle was Paula, not Pamela, Black, and asking the court to correct the name on the judgment. Flint apparently did not give notice of the ex parte request to Black. The court granted the application and entered an order changing the name on the judgment to Paula Black. Flint followed up by serving applications for examination of judgment debtor on Black and Shinn. Black phoned Shinn’s attorney, asserting that she had no information regarding his client’s finances, but counsel told her that the examination related to her finances because Flint had obtained a default judgment against her. Black sought advice from two attorneys, both of whom told her there was “nothing she could do.” Black attended the examination, intending to tell the judge that for six years the judgment had been in someone else’s name, but she never got the chance.
In April 2006, Flint filed an assignment of judgment with the trial court. Two years later, MIY obtained an ex parte order changing the name on all the documents in the case file from Pamela Black to Paula Black (aka Paula Whittier). On July 6, 2008, MIY filed an ex parte application for an order of sale of a house that Black owned. Black filed a motion on September 17 to set aside the default and the default judgment. In her supporting declaration, Black stated that a van her son used was registered in her name, and that it broke down in December 1997. Her ex-husband took the van to Shinn’s repair shop to have it fixed, and when he went to claim it several months later, Shinn told him that the vehicle was in pieces and could never be driven again; Shinn offered to reassemble it for $1900. According to Black, she then went to the repair shop, met with the owner (whose name she didn’t know), signed the van over to him, and sent a release of liability to the DMV. Unbeknownst to her, the van had already been in the accident with Flint. After being served with papers for Pamela Black, she called Flint’s attorney to say that he’d served the wrong person, and thought no more about it. When she got a copy of the default judgment in the name of Pamela Black, she thought it was just one more mistake. Finally, Black recited the rest of the events that led up to the filing of her set-aside motion. In opposition, MIY contended that the motion was untimely, and that Black had not been diligent in responding once she’d been served. After a hearing on October 21, 2008, the court found that the default and the default judgment should be set aside because of Black’s “ ‘mistake, surprise, & excusable neglect,’ ” and because she had never been properly served with the complaint.
MIY appealed, but the Fifth District affirmed.
Those pesky time limits . . .
The justices noted that the lower court’s finding of mistake, surprise, and excusable neglect echoes language in CCP §473(b), which allows the trial court to set aside a default and a default judgment taken against a litigant “ ‘through his or her mistake, inadvertence, surprise, or excusable neglect.’ ” But the trial court may grant relief under that statute, they explained, only when a set-aside motion is filed within six months of the date of entry of default. Here, Black’s set-aside motion was filed on September 17, 2008, more than eight years after default was entered on June 4, 1999. Therefore, the panel concluded, Black’s motion was untimely, and the trial court lacked jurisdiction to make a set-aside order under that statute.
No minor mistake . . .
But that didn’t end the matter, the panel continued, because CCP §473(d) allows a trial court to set aside a void judgment or order on equitable grounds, and it does not contain any time limitation. When they reviewed the chain of events, the justices noted that the lower court had granted Flint’s request to amend the judgment on an ex parte basis. A trial court may correct clerical errors in a judgment ex parte, they reasoned, but it cannot amend the judgment without giving notice and an opportunity to be heard to every party whose rights could be substantially affected by the amendment. The panel found that in McNally v. Mott (1853) 3 Cal. 235, a case with facts similar to the ones here, the plaintiff, after obtaining a default judgment against George Mott, later successfully sought an order amending the judgment to change the name on it to Gordon Mott. On appeal, the Supremes reversed, finding that the trial court erred by amending a judgment against one man to a judgment against a different man, absent proof that the two were the same person. Moreover, these justices continued, this case didn’t involve the slight misspelling of the name on the summons and complaint, as happened in Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 92 Cal.Rptr.3d 717, 2009 CFLR 11211, 2009 FA 1389. Pamela Black was presumed to be a different person from Paula Black. And since MIY had presented no proof that the two were in fact the same person, the trial court could not change the name on the judgment without giving Black notice and an opportunity to be heard. Therefore, the panel concluded, the default judgment against Black was void on its face, and no time limit precluded its set-aside.
Furthermore . . .
The trial court could also have set the judgment aside on the basis of extrinsic fraud or mistake. Extrinsic fraud, the justices explained, arises when one party is precluded from having a fair hearing by another party’s fraud or deception. Extrinsic mistake, on the other hand, takes place when a party is prevented from having a fair hearing because of “ ‘circumstances extrinsic to the litigation’ ” (quoting Rappleyea v. Campbell (1994) 8 Cal.4th 975, 35 Cal.Rptr. 669, 884 P.2d 126, 1995 CFLR 6642). Here, Black contacted Flint’s attorney to tell him that she had been mistakenly served, but the attorney neglected to give her the information that might have cleared up the error, failed to amend the complaint to correct the error, and proceeded with the litigation. Then, six years after entry of judgment, counsel obtained an ex parte amendment of the judgment without giving notice to Black. “On these unique facts,” the panel said, the trial court correctly found that Black had taken reasonable action in responding to service of the summons and complaint. The actions taken by Flint’s attorney after he talked to Black could have been found to constitute either extrinsic fraud (based on counsel’s proceeding when he knew the wrong defendant had been named) or extrinsic mistake (based on Black’s belief that she was not the defendant). Either way, the justices found, the amended judgment against her was unjust. Moreover, Black had done everything possible after learning that there was a judgment against her, but she had been thwarted when she was unable to bring the error to the court’s attention during the debtor examination, and when her consultations with attorneys led her to believe she had no remedy. Black had to do her own research to learn that she should file a motion to set the judgment aside, which she did within a reasonable time. Summing up, the justices held that the trial court had not erred in granting Black equitable relief from the judgment.
Don’t look so innocent . . .
Finally, MIY contended that the lower court should not have granted Black’s motion because MIY was a bona fide purchaser of Flint’s judgment. The justices begged to differ, finding no support for that argument in Marlenee v. Brown (1943) 21 Cal.2d 668, the case on which MIY had relied, because it involved neither the set aside of a default and default judgment nor the bona fide purchaser of a judgment. Moreover, the panel reasoned, when a judgment is assigned, the assignee has the same rights and remedies as the assignor, but the assignee is also subject to the same defenses that the obligor can assert against the assignor. In addition, the justices were not convinced that MIY was an innocent purchaser, given that Flint’s attorney had been advised of the error in the judgment before the assignment and had requested the amendment two months later. MIY received by assignment a judgment against Pamela Black; MIY and Flint’s attorney were responsible for any error in seeking to amend the judgment without giving notice to Black. Accordingly, the trial court did not err by failing to set aside the judgment on the grounds that MIY asserted.
We have to agree with the panel’s characterization of the facts here as unique. It’s rare indeed that a default judgment is set aside after more than six years, but it seems to be the right result in this case. The justices would surely have come to a different decision, to say nothing of the trial court, if Black had ignored the summons and complaint, as many do who receive important papers that appear to have been served in error. She contacted Flint’s attorney to report the error, and that little bit of diligence saved her case.
Disso, separation, or nullity judgments can be set aside on equitable grounds, but time limits apply that are not applicable in other cases. Fam C §2122 sets out the grounds on which an equitable set-aside may be granted, as well as the time limits for bringing a set-aside motion, as follows:
(1) “Actual fraud where the defrauded party was kept in ignorance or in some other manner was fraudulently prevented from fully participating in the proceeding.” The fraud must be claimed within one year of the date of discovery (or imputed discovery). Fam C §2122(a).
(2) Perjury in the declarations required by Fam C §2100 et seq., including the income and expense declaration. This claim must be brought within one year of discovery (or imputed discovery) of the perjury. Fam C §2122(b).
(3) Duress, if the claim is made within two years of the date of entry of judgment. Fam C §2122(c).
(4) Mental incapacity, if the claim is brought within two years of the date of entry of judgment. Fam C §2122(d).
(5) Unilateral or mutual mistake of law or fact as to stipulated or uncontested judgments, brought within one year of the date of entry of judgment. Fam C §2122(e).
(6) Failure to comply with the disclosure requirements in Fam C §2100 et seq., brought within one year after the complaining party discovered, or should have discovered, the noncompliance. Fam C §2122(f).
We’ve seen very few disso judgments set aside on the grounds of extrinsic fraud or mistake. Those concepts have proven tricky ones for many attorneys to understand and for many courts to apply. This case gives us a capsule summary of the distinction between extrinsic fraud and extrinsic mistake that is must reading. Too often, these concepts are somewhat melded together; the justices here give us a valuable explanation of the distinction between the two.
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