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Manson, Iver & York v. Black

July 30, 2009

MANSON, IVER & YORK, PLAINTIFF AND APPELLANT,
v.
PAULA J. BLACK, DEFENDANT AND RESPONDENT.



APPEAL from a judgment of the Superior Court of Kern County. William D. Palmer, Judge. (Super. Ct. No. S-1500-CV-238533)

The opinion of the court was delivered by: Hill, J.

CERTIFIED FOR PUBLICATION

OPINION

Manson, Iver & York (Manson), assignee of the original plaintiff (plaintiff), appeals from the order granting the motion of defendant, Paula J. Black, to set aside the default and default judgment against her in this case. Manson contends the trial court abused its discretion because Black‟s*fn1 motion was untimely, Black failed to show she was diligent in seeking relief, and Black was properly served with summons and complaint, so there was no violation of due process. We find no abuse of discretion and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In March 1999, plaintiff Robert Flint filed a personal injury action against Douglas Shinn and "Pamela Black," alleging he was injured in an automobile accident in which Shinn was operating a motor vehicle owned by Pamela Black. Summons and complaint were personally served on Paula Black on April 16, 1999. Black failed to file a response and the default of Pamela Black was entered on June 4, 1999. Judgment was entered against Pamela Black in the amount of $15,000 on August 4, 1999.

On May 6, 2005, plaintiff assigned his interest in the judgment to Manson. On July 11, 2005, plaintiff filed an ex parte application to amend the judgment to correct defendant‟s name, asserting he had discovered her name was not Pamela Black, but Paula Black. The court granted the application and entered the order the same day. The record does not reflect that any notice of this application was given to Paula Black. On October 5, 2005, plaintiff filed applications for a judgment debtor examination of Paula Black and Shinn. On November 3, 2005, both defendants appeared and were examined by Manson‟s counsel.

On April 5, 2006, plaintiff filed with the court an assignment of judgment, showing that plaintiff had assigned his interest in the judgment to Manson. Two years later, Manson obtained an ex parte order that all documents in the case should be corrected to reflect defendant‟s name as Paula J. Black also known as Paula J. Whittier. Then, on July 6, 2008, Manson filed an ex parte application for an order of sale of a residence owned by Paula Whittier.

On September 17, 2008, Black filed a motion to set aside the default and default judgment against her. She asserted the following facts. In December 1997, her son‟s van, which was registered in her name, broke down and her ex-husband took it to San Joaquin Automotive, which was owned by Shinn, for repairs. Months later, her ex-husband asked for the van back, but Shinn said it was torn apart and would never be safe to drive again; he wanted $1900 to put it back together. Black met with the owner of San Joaquin Automotive, whom she did not know by name, signed the van over to him, and sent a release of liability to the Department of Motor Vehicle (DMV). Unknown to her, Shinn had already been in the accident that was the subject of this lawsuit. Black was served with the summons and complaint in 1999, but they did not have her name on them. She assumed she was served in error, and called plaintiff‟s attorney and told him he had the wrong person. She said she had not been in an accident and did not know Shinn. She thought that ended the matter. When she received the default judgment addressed to Pamela Black, she still assumed plaintiff had the wrong person. In 2005, she was served with the order for judgment debtor examination which correctly named her as Paula Black. She called Manson‟s attorney and said she did not know anything about Shinn‟s finances; the attorney told her the examination was of her, and Manson had a default judgment against her. She consulted two attorneys who told her there was nothing she could do. She planned to tell the judge at the judgment debtor examination that the judgment had been in the name of Pamela Black for six years, but she did not get the opportunity.

Manson opposed Black‟s motion to set aside the judgment, arguing it was untimely and Black did not demonstrate that she acted with reasonable diligence in responding to service of process. On October 21, 2008, the court heard and granted Black‟s motion, finding that Black‟s default and the default judgment were "caused by her mistake, surprise, & excusable neglect; and due process requiring the setting aside of the judgment as Ms. Black was never properly served." Manson timely filed this appeal.

DISCUSSION

A default and default judgment may be set aside pursuant to the provisions of Code of Civil Procedure, section 473, subdivision (b),*fn2 but the motion must be made within six months after entry of the default. After the time for requesting statutory relief under section 473 has passed, the court may set aside the default and judgment on equitable grounds. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981 (Rappleyea).) A judgment that is void on its face may be set aside at any time. (Nagel v. P & M Distributors, Inc. (1969) 273 Cal.App.2d 176, 179-180.)

An order vacating a default and default judgment is appealable as an order after final judgment. (County of Stanislaus v. Johnson (1996) 43 Cal.App.4th 832, 834.) An order granting relief from a default and default judgment under the provisions of section 473 is reviewed for abuse of discretion. (Sprague v. County of San Diego (2003) 106 Cal.App.4th 119, 127.) An order vacating a default on equitable grounds is also reviewed for abuse of discretion. (Rappleyea, supra, 8 Cal.4th at p. 981.)

I. Motion 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 ...


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