Metropolitan News-Enterprise


Monday, August 3, 2009


Page 3


Fifth District Upholds Order Setting Aside Verdict Due to Misnomer


By SHERRI M. OKAMOTO, Staff Writer


The Fifth District Court of Appeal Friday upheld a trial court’s order setting aside a $15,000 default judgment nine years after it was entered due to the plaintiff’s use of the incorrect first name for the defendant in the summons and complaint.

Kern Superior Court Judge William D. Palmer did not abuse his discretion in granting Paula Black’s motion for equitable relief as the judgment against “Pamela Black” was void on the face of the record and could be set aside at any time, the panel said.

Robert Flint filed a personal injury action against Pamela Black and Douglas Shinn in March 1999 alleging he was injured in a car accident in which Shinn was operating a motor vehicle owned by Black. 

Summons and a complaint were personally served on Paula Black, who failed to file a response. Default of “Pamela Black” was entered in June 1999, and judgment was entered in the amount of $15,000 that August.

Flint subsequently assigned the judgment to Manson, Iver & York and filed an ex parte application to amend the judgment to change the named defendant from Pamela Black to Paula Black. The petition was granted, and the record did not reflect that any notice was given to Paula Black.

Motion to Set Aside

Manson Iver later filed an ex parte application for an order of sale of a residence owned by Paula Black, then known as Paula Whittier, who filed a motion to set aside the default and default judgment in September 2008.

Black asserted her former husband had taken her son’s van to San Joaquin Automotive for some repair work in 1997. The van was registered in her name, and the body shop was owned by Shinn.

Several months later, Black said Shinn told her ex-husband the vehicle had been torn apart and would never be safe to drive again. Shinn allegedly demanded $1,900 to put the car together again.

At that point, Black said she met with Shinn, whom she did not know by name, and signed the vehicle over to him. She also sent a release of liability to the Department of Motor Vehicles. Black claimed that she did not know the van and Shinn had been involved in the accident with Flint prior to this occurring.

When Black was served with the summons and complaint for “Pamela Black,” she said she assumed there had been a mistake and called Flint’s attorney. Black testified that she told the attorney she had not been in an accident and did not know Shinn.

She also disregarded the notice of default judgment addressed to Pamela Black, assuming again that it was not intended for her, Black said.

In 2005, when Black was served with the order for a judgment debtor examination with her correct name on it, she said she consulted two attorneys who told her there was nothing she could do to contest the default. She said she had planned to tell the judge at the judgment debtor examination that the judgment had been in the name of Pamela Black but she never had the opportunity.

Manson Iver opposed Black’s motion to set aside the judgment filed three years later, arguing the motion was untimely and that she had not acted with reasonable diligence in responding to service of process.

The trial court granted Black’s motion, finding the default and 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.”

Statutory Relief

Writing for the appellate court, Justice Brad R. Hill explained a statutory grant of relief based on mistake, inadvertence, surprise or excusable neglect under Code of Civil Procedure Sec. 473 can only be made on a motion filed within six months of the entry date.

As nine years had elapsed before Black filed her motion, it was untimely and the trial court ruling was without jurisdiction based on her showing of mistake, inadvertence, surprise or excusable neglect, Hill said.

However, he noted that a judgment void on its face may be set aside on motion without any time limitation. A trial court lacks jurisdiction to amend a judgment ex parte in a manner not prescribed by statute, and it may not amend a judgment in such a way that it alters the rights of the parties under its authority to correct a clerical error, Hill said.

Hill reasoned that Paula Black and Pamela Black were presumptively two different people and absent any proof they were one and the same, the trial court could not, on the application of plaintiff and without notice to defendant, simply change the name of the defendant in the judgment from Pamela Black to Paula Black.

He differentiated Black’s situation from that of the defendant in Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, in which the defendant claimed he had not been properly identified in the complaint or served because his first name, Takeshi, was incorrectly spelled “Takechi.” 

The Fourth District Court of Appeal rejected this argument, reasoning service otherwise been proper and the error was so slight that the defendant was aware he was the person named as a defendant so the judgment could not be set aside.

But Hill said “[p]rima facie, Pamela Black was a different person from Paula Black,” Hill said, emphasizing Black’s asserted belief she was not the person Flint intended to name as a defendant.

Extrinsic Fraud or Mistake

Hill also concluded that relief was warranted on the alternate basis of extrinsic fraud or mistake.

Because Black had notified Flint’s counsel of the perceived error in service and believed when she received a request for default judgment, again directed to Pamela Black, she was not the intended defendant, Hill said these circumstances “amounted to either extrinsic fraud, in that plaintiff continued to proceed against Pamela Black, even after knowing he had either named the wrong defendant in the complaint or served the wrong person with the complaint, or extrinsic mistake, in that Paula Black was misled to mistakenly believe that she was not the intended defendant by plaintiff’s inaction after being informed that she was not Pamela Black, the named defendant.”

 In either case, Hill posited that the uncorrected error in the name prevented Black from appearing and defending and that mistake, combined with the subsequent amendment of the judgment without notice, resulted in an unjust judgment against her.

Justices Steven M. Vartabedian and Stephen Kane joined Hill in his decision.

The case is Manson, Iver & York v. Black, 09 S.O.S. 4618.


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