Opinion
A147255
07-06-2017
ISIAK MOYOSORE, Plaintiff, Cross-Defendant and Appellant, v. USUA AMANAM, Defendant, Cross-Complainant, and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. FG11557890)
The trial court dismissed Isiak Moyosore's complaint against Usua Amanam. The court also entered a default judgment against Moyosore on Amanam's cross-complaint. Several years later, Moyosore moved to aside the dismissal, and to vacate the default judgment. The court denied the motions.
Moyosore appeals in propria persona, raising various claims of error. We affirm.
The notice of appeal erroneously denominates the appealable orders, but we disregard the defect because there is "no question" regarding the orders from which Moyosore appeals and because Amanam has not demonstrated prejudice from the error. (See Berman v. Dean Witter & Co., Inc. (1975) 44 Cal.App.3d 999, 1001, fn. 1.) Moyosore's "Statement of Facts" and "Procedural History" in his opening brief occupy less than one page and contain no record references. This practice violates California Rules of Court, rule 8.204(a)(1)(C). We have "reviewed the record in an attempt to describe the evidence submitted by the parties. Regardless, [Moyosore] cannot be heard to complain that we have overlooked any . . . material facts." (Lopez v. C.G.M. Development, Inc. (2002) 101 Cal.App.4th 430, 435, fn. 2; Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1406 [appellate court may disregard factual assertions where no record reference is provided].)
FACTUAL AND PROCEDURAL BACKGROUND
Amanam owned real property in Fremont. In 2000, Amanam agreed to sell the property to Moyosore and they entered into at least one written purchase agreement. Moyosore made payments toward the purchase of the property and moved into the property. In 2008, Moyosore stopped making payments; in 2010, the property was sold in a foreclosure sale. Moyosore was evicted.
In early 2011, Moyosore filed a complaint in propria persona against Amanam, alleging various claims, including for breach of real estate contract. Amanam demurred. The court sustained the demurrer with leave to amend. It does not appear Moyosore amended the complaint. Moyosore failed to appear at two case management conferences. The court ordered him to appear and show cause why the complaint should not be dismissed, noting mail sent to Moyosore's address of record had been returned and that Moyosore had "failed to update his address with the court as required by the California Rules of Court." In March 2012 — after Moyosore failed to appear at the order to show cause hearing — the court dismissed the complaint.
In 2011, Amanam cross-complained for, among other things, breach of contract. Moyosore did not answer the cross-complaint and in late 2011, the court entered his default. In September 2012, the court entered a default judgment for Amanan.
Motion to Set Aside Dismissal of the Complaint
In October 2015 — over three and a half years after his complaint had been dismissed — Moyosore moved to set aside the dismissal, contending extrinsic factors deprived him of a fair adversary hearing. Moyosore argued he was "forced to leave the country . . . because of the foreclosure brought on by [Amanam]" and that the foreclosure constituted an extrinsic factor preventing him "from having his day in court." In addition, Moyosore claimed the dismissal should be set aside because Amanan "perpetrated a fraud upon the court" by failing to inform the court of the foreclosure. According to Moyosore, had the court known of the foreclosure, "it most likely would have delayed dismissing the case." Moyosore offered a supporting declaration describing the dispute and the circumstances leading to his move to Nigeria and his return to the United States.
Moyosore moved to Nigeria in April 2011 but returned to the United States for periods of time in May 2013 and February 2014. Moyosore has resided in the United States since July 2015.
In opposition, Amanam argued Moyosore was not entitled to equitable relief because he did not have a meritorious case or a satisfactory excuse for failing to prosecute his complaint. Amanam also contended Moyosore had not demonstrated diligence in seeking to set aside the dismissal. Additionally, Amanan urged the court to deny the motion based on laches and inexcusable neglect.
Motion to Vacate Default Judgment
In October 2015, Moyosore moved to vacate the default judgment, seeking relief on three grounds: (1) Code of Civil Procedure section 473; (2) lack of notice of the cross-complaint; and (3) "extrinsic factors (foreclosure)." Moyosore's supporting declaration averred he did not know of Amanam's cross-complaint or receive any documents regarding the cross-complaint until July 2015. Amanam's opposition argued relief was unavailable under section 473, that Moyosore received notice of the lawsuit because he was properly served with the cross-complaint, and that any lack of notice was caused by Amanam's inexcusable neglect. Amanam also claimed Moyosore was not entitled to equitable relief.
All undesignated statutory references are to the Code of Civil Procedure.
Following a hearing, the court denied both motions. The court explained that where a former party seeks relief more than six months after entry of the order "on equitable grounds for extrinsic fraud or mistake that prevented a hearing, the former plaintiff must make an extremely strong showing that he had a meritorious case, that he has a satisfactory excuse for not timely defending the case, and that he was diligent in seeking to set aside the [order] once he discovered it. . . . [Moysore] has not shown a sufficient excuse for having failed to notify the court of his new address after he was evicted . . . from the real property at issue in the action. The fact that he felt constrained by financial circumstances to move back to Nigeria after the eviction does not explain why he did not update his address with the court, as California Rule of Court rule 2.200 required him to do, or why he did not monitor the progress of the action remotely. . . . [Moyosore] admittedly returned to California for periods in 2013 and 2014, yet did not act with any diligence to investigate the status of his case or, if he did, to try to have" the dismissal set aside or the default judgment vacated.
DISCUSSION
We review the orders denying Moyosore's motions to set aside the dismissal and to vacate the default judgment for abuse of discretion. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.) We presume the orders are "correct, indulge all presumptions in favor of that correctness, and resolve all ambiguities in favor of affirmance." (Ellis v. Toshiba America Information Systems, Inc. (2013) 218 Cal.App.4th 853, 889.)
Moyosore claims the court erred by concluding he was not entitled to equitable relief based on extrinsic fraud. To qualify for such relief "the moving party must demonstrate that he . . . has a meritorious case, that he . . . has a satisfactory excuse for not presenting a defense to the original action and that he . . . exercised diligence in seeking to set aside the default once the [mistake] had been discovered." (In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1070-1071.) Here, Moyosore moved out of the country and did not file a change of address as required by Rules of Court, rule 2.200. Moyosore returned to the United States in 2013 and 2014 but made no effort to set aside the dismissal or to vacate the default judgment until 2015, over three years after the case was dismissed and the default judgment entered. Under the circumstances, the court did not abuse its discretion by concluding Moyosore was not entitled to equitable relief. (Id. at p. 1075 [moving party did not establish entitlement to equitable relief based on extrinsic fraud]; Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 503, 506 [moving party did not present satisfactory excuse for failing to present a defense, nor act diligently to set aside the default].)
This case is not — as Moyosore argues — like In re Marriage of Park (1980) 27 Cal.3d 337. In that marital dissolution case, the wife was involuntarily deported during the litigation and could not appear at trial, and the lower court entered judgment against her. (Id. at pp. 340-341.) The California Supreme Court concluded the husband's failure to disclose the wife's deportation was extrinsic fraud requiring the judgment to be set aside. (Id. at pp. 343, 347.) Here, Moyosore was not deported, and he has cited no authority requiring Amanam to inform the trial court of the foreclosure. Park does not apply here.
The court implicitly concluded Moyosore was not entitled to relief from the default judgment pursuant to section 473. This conclusion was not an abuse of discretion. Moyosore's motion to set aside the default judgment — filed over three years after the judgment was entered — was untimely and did not attach a copy of his proposed answer to the cross-complaint. (§ 473, subd. (b); Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1183.) Nor was Moyosore entitled to relief under section 473.5, which provides relief from a default judgment where service of the summons has not resulted in actual notice of the lawsuit in time to defend the action. Amanam properly served Moyosore with the cross-complaint at the address of record. (Whitehead v. Habig (2008) 163 Cal.App.4th 896, 903 [self-represented party was properly served at address of record where that party did not file a change of address notice].) Additionally, the motion to set aside the default was untimely (§ 473.5, subd. (a)).
We reject Moyosore's claim, unsupported by authority, that the lower court was "influenced by fraud." We "have considered and rejected [Moyosore's] remaining arguments." (Southern California Edison Co. v. Public Utilities Com. (2014) 227 Cal.App.4th 172, 203, fn. 23.)
DISPOSITION
The trial court's orders are affirmed. Amanam is entitled to costs on appeal. (Cal. Rules of Court, rule 8.278.)
/s/_________
Jones, P. J. We concur: /s/_________
Simons, J. /s/_________
Bruiniers, J.