Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. BC 343653. Edward A. Ferns, Judge. Reversed with directions.
Boren Osher & Luftman and Jeremy J. Osher for Plaintiff and Appellant.
Quock & Onouye and Kevin J. Quock for Defendant and Respondent.
ROTHSCHILD, J.
Gregory S. Young sued Marion Nakao for breach of contract and served her with the complaint. Nakao did not respond to the complaint despite multiple warnings from Young’s counsel concerning the progress of the proceedings and the consequences of her failure to respond. As a result, Young obtained a default judgment against Nakao. Seven months after receiving notice of entry of the default judgment, Nakao moved to set aside the judgment and to quash service of the summons and complaint. The trial court granted both motions. We reverse because Nakao’s motion was untimely and she did not establish extrinsic fraud or mistake.
BACKGROUND
On November 29, 2005, Young filed suit against Nakao for breach of contract and related claims. The suit arose out of an alleged oral contract for Young to assist Nakao in designing and remodeling her residence. A registered process server has declared under penalty of perjury that on December 8, 2005, he personally served the summons and complaint on a woman who identified herself as “Marion Nakao” at Nakao’s address. Over the course of the 40 days following the alleged service, Young’s counsel wrote to Nakao several times, advising her of a settlement offer and also of the risk of default.
Nakao did not timely file a response to the complaint, so the superior court entered her default on January 18, 2006. On January 30, 2006, Young’s counsel sent Nakao written notice of the entry of default. Over the next few months, Young’s counsel continued to write to Nakao, informing her of a case management conference and his filing of a request for entry of judgment, and recommending that she contact an attorney.
On May 8, 2006, the court entered a default judgment against Nakao in the amount of $81,868.86. On May 12, 2006, Young’s counsel sent Nakao a notice of entry of the default judgment.
On December 14, 2006, Nakao filed a motion to set aside the default judgment under Code of Civil Procedure section 473, subdivision (d), and also on the basis of the court’s inherent equitable powers. She also moved to quash service of the summons and complaint. She argued that she was never served with the summons and complaint, that the court therefore did not have personal jurisdiction over her, and that the judgment consequently was void. She also argued that she had a meritorious defense because Young is an unlicensed contractor. In opposition, Young argued that the motion to set aside the default was untimely and also failed on the merits. He further argued that the court need not address the motion to quash because the motion to set aside the default judgment should be denied.
All subsequent statutory references are to the Code of Civil Procedure.
On February 26, 2007, the trial court granted both of Nakao’s motions. Young timely appealed.
STANDARD OF REVIEW
We review the trial court’s order granting Nakao’s motion to set aside the default judgment for abuse of discretion. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478; see also Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.) A ruling based upon a legal error constitutes an abuse of discretion. (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 393.)
DISCUSSION
“[W]hen a motion to vacate is made on the ground that the default judgment is void because of improper service, the limitation period contained in Code of Civil Procedure section 473.5 applies . . . .” (Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1116.) Under section 473.5, such motions must be filed “within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment . . .; or (ii) 180 days after service . . . of a written notice that the default or default judgment has been entered.” (§ 473.5, subd. (a).)
Young’s counsel served Nakao with notice of entry of the default on January 30, 2006, and with notice of entry of the default judgment on May 12, 2006. Nakao’s time to move to set aside the default judgment on the basis of improper service therefore expired 180 days later, on November 8, 2006. She did not file her motion until December 14, 2006, so the trial court should have denied the motion to set aside the judgment as untimely and should not have reached the merits of the motion to quash.
Nakao argues that a judgment that is void on its face may be attacked at any time, regardless of the time limits in section 473.5. (See, e.g., Plotitsa v. Superior Court (1983) 140 Cal.App.3d 755, 761.) She further argues that the judgment is void on its face because Young did not plead or prove that he was a licensed contractor when he rendered his services under the contract. The argument fails. Nakao cites no authority for the proposition that Young’s failure to plead and prove every element of his claim makes the default judgment void. (See Falahati v. Kondo (2005) 127 Cal.App.4th 823, 830. [“[A] default judgment is not necessarily void just because it is based on a complaint which fails to state a cause of action.”].)
We also note that (1) it appears that not all of the work under the contract required a license, and (2) Nakao cites no evidence that Young was not licensed.
Nakao’s reliance on Falahati v. Kondo, supra, 127 Cal.App.4th 823, and Renoir v. Redstar Corp. (2004) 123 Cal.App.4th 1145, is misplaced. In both of those cases, the judgment was void on its face and could therefore be attacked at any time. In Falahati v. Kondo, the judgment was void because the operative complaint contained no factual allegations against the defaulting defendant and did not specify the amount of damages sought from that defendant. (Falahati v. Kondo, supra, 127 Cal.App.4th at pp. 830-381.) And in Renoir v. Redstar Corp., the record itself showed that no summons was ever issued. Thus, none could have been served, so the court never obtained personal jurisdiction over the defendant. (Renoir v. Redstar, supra, 123 Cal.App.4th at pp. 1148, 1154.)
Finally, Nakao argues that the trial court properly set aside the judgment because the court has the inherent power to set aside a default judgment at any time on the basis of extrinsic fraud or mistake. The argument fails, however, because “[r]elief on the ground of extrinsic fraud or mistake is not available to a party if that party has been given notice of an action yet fails to appear, without having been prevented from participating in the action.” (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 503.) Far from preventing Nakao from participating in the action, Young’s counsel repeatedly gave Nakao notice of the proceedings and of the consequences of her continuing failure to appear. Relief on the ground of extrinsic fraud or mistake is therefore unavailable in this case.
DISPOSITION
The order granting Nakao’s motions is reversed, and the trial court is directed to enter a new order denying both motions. Appellant shall recover his costs of appeal.
We concur: VOGEL, Acting P. J., JACKSON, J.
(Judge of the L. A. S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)