Filed 10/19/22 Cal. Capitol Insurance Co. v. Hoehn CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer) ----

CALIFORNIA CAPITOL INSURANCE COMPANY C092450 et al., (Super. Ct. No. SCV0026851) Plaintiffs and Respondents, v. CORY MICHAEL HOEHN, Defendant and Appellant.

In 2020, appellant Cory Michael Hoehn filed a motion to set aside default and a 2011 default judgment. The trial court denied the motion, ruling it was untimely as to a theory of improper service of process, and unpersuasive as to a theory of extrinsic fraud.

We affirm.

I. BACKGROUND In March 2010, California Capital Insurance Company (Capital Insurance) filed a civil action alleging that Hoehn’s negligence caused a June 2009 fire in a Roseville

apartment building where Hoehn lived at the time. Pursuing a subrogation claim, Capital Insurance sought reimbursement of over $470,000 the company paid to the owner of the damaged apartment building under an insurance policy.

In April 2011, after Capital Insurance provided proof of substituted service of process on Hoehn, the trial court entered default judgment against Hoehn. The proof included a declaration under penalty of perjury by a registered California process server, stating that—on five occasions between March 27 and April 1, 2010—she attempted to serve Hoehn personally at his home in San Mateo. On the fifth unsuccessful attempt, on April 1, 2010, the process server “[s]ub-served to” Hoehn’s girlfriend (a “[c]o- [o]ccupant”) at the residence, as Hoehn was “not home.”

The process server further declared that, the day after substituted service, she mailed copies of the complaint and summons to Hoehn at his San Mateo residence.

In March 2020, Hoehn moved to set aside default and default judgment, and for leave to file an answer to the 2010 complaint.1 Submitting a declaration in support of his motion, Hoehn argued he did “not recall seeing the [c]omplaint or [s]ummons at any time”; he “never received the [c]omplaint or [s]ummons or any legal paperwork from” his girlfriend; and that—as his girlfriend “did not live with” him—Capital Insurance “falsely claimed that [his] girlfriend . . . was a ‘[c]o-[o]occupant and ‘member of the household’ of . . . Hoehn’s residence” in San Mateo in 2010.

Thus, Hoehn argued, the judgment entered against him was “void because the service of summons was not made in the manner prescribed by” Code of Civil Procedure

The trial court denied Hoehn’s motion, ruling it: (1) was untimely with respect to the theory of improper service of process, as the judgment was facially valid; and (2) was unpersuasive on the theory of extrinsic fraud, as Hoehn “fail[ed] to demonstrate” that a “proof of service of summons misidentif[ying] [Hoehn’s girlfriend] as a co-occupant” “constitute[d] extrinsic fraud.”

Hoehn timely appealed.

II. DISCUSSION A. Background Legal Principles “[A] party who has not actually been served with summons has [multiple] avenues of relief from a default judgment.” (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180 (Trackman).)

“First, . . . section 473.5, subdivision (a) provides,” as relevant here, that “ ‘[w]hen service of a summons has not resulted in actual notice to a party in time to defend the

Further undesignated statutory references are to the Code of Civil Procedure.

“Thus, a party can make a motion showing a lack of actual notice not caused by avoidance of service or inexcusable neglect, but such motion must be made no later than two years after entry of judgment, and the party must act with diligence upon learning of the judgment.” (Trackman, supra, 187 Cal.App.4th at p. 180.)

“Where a party moves under section 473, subdivision (d) to set aside ‘a judgment that, though valid on its face, is void for lack of proper service, the courts have adopted by analogy the statutory period for relief from a default judgment’ provided by section 473.5, that is, the two-year outer limit. (8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial Court, § 209, pp. 814-815 (Witkin); see Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1120-1124 [(Rogers)]; Schenkel v. Resnik (1994) 27 Cal.App.4th Supp. 1, 3-4; Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 301, fn. 3.)” (Trackman, supra, 187 Cal.App.4th at p. 180.)

“Second, the party can show that extrinsic fraud or mistake exists, such as a falsified proof of service, and such a motion may be made at any time, provided the party acts with diligence upon learning of the relevant facts.” (Trackman, supra, 187 Cal.App.4th at p. 181.) “[A] third avenue of relief is a motion to set aside the default judgment on the ground that it is [invalid on its face]. [Citations.] ‘A judgment or order that is invalid on the face of the record is subject to collateral attack. [Citation.] It follows that it may be set aside on motion, with no limit on the time within which the motion must be made.’ ” (Trackman, supra, 187 Cal.App.4th at p. 181.)

Fourth, “[i]f the invalidity does not appear on its face, [a] judgment or order may be attacked . . . in an independent equitable action without time limits.” (County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1228; see Groves v. Peterson (2002) 100 Cal.App.4th 659, 670, fn. 5 [“A motion in the underlying case to set aside a default judgment as void for defective service of process must, under . . . section 473.5, be filed within a reasonable time not exceeding two years from the entry of the default judgment, but an independent action in equity to set aside a judgment on that ground is not subject to a time limit”]; Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 488 [“a judgment void for lack of due process notice or extrinsic fraud is subject to attack at any time in a proceeding or action initiated for that purpose”].)

In summary, to attack a judgment that is invalid on its face, a motion to set it aside may be made at any time in the underlying action. But if a judgment is valid on its face, and more than two years have passed since entry of judgment, a party seeking to attack the judgment must either (a) show extrinsic fraud or mistake via a motion in the underlying action, or (b) pursue an independent action in equity.

B. “Improper Service” Theory of Relief Untimely as Judgment Was Facially Valid Here, rather than initiate an independent equitable action, Hoehn filed a motion in the underlying action attacking an almost nine-year-old judgment that was valid on its face.4 Thus, regarding the theory of relief that the judgment was void for lack of proper service, the trial court properly ruled the motion was untimely, because it was filed more than two years after entry of judgment.

Hoehn argues that “[s]ection 473[, subdivision ](d) has no time limit to set aside a void judgment.” True, the text of the statute does not state a time limit. But case law does. (See Trackman, supra, 187 Cal.App.4th at p. 180 [“Where a party moves under section 473, subdivision (d) to set aside ‘a judgment that, though valid on its face, is void for lack of proper service, the courts have adopted by analogy the statutory period for relief from a default judgment’ provided by section 473.5, that is, the two-year outer limit”].)

Hoehn argues that Trackman, and the “line of case law” that it rests on, was wrongly decided, but cites no authority expressly disagreeing with the holding in Trackman that a motion—under section 473, subdivision (d)—to set aside a facially valid judgment for lack of proper service must be filed within two years of entry of judgment.5 Rather, Hoehn cites multiple cases declaring some version of the broad proposition that “a void judgment can be attacked at any time.”6 We agree that a void judgment can be

Thus, to the extent Falahati might be seen as standing for the proposition that a void judgment that is facially valid can be attacked at any time under section 473, subdivision (d), Falahati marshalled no case law in support of that proposition. attacked at any time. But if a void judgment is valid on its face, it cannot be attacked via section 473, subdivision (d) at any time. (Cf. Kremerman v. White (2021) 71 Cal.App.5th 358, 370 [whether a judgment is void on its face or valid on its face is a distinction that “ ‘ “may be important in a particular case because it impacts the procedural mechanism available to attack the judgment [or order], when the judgment [or order] may be attacked, and how the party challenging the judgment [or order] proves that the judgment is void” ’ ”]; Smith v. Jones (1917) 174 Cal. 513, 517-518 [because “the motion . . . to set aside the judgment was made too late,” the moving party “is required to seek whatever relief he is entitled to through an independent action in equity to set aside the judgment for want of jurisdiction in the court to pronounce it”]; Hill v. City Cab & Transfer Co. (1889) 79 Cal. 188, 190, 191 [explaining, in a case where defendant argued “judgment had been obtained without service upon him,” that “a judgment which is void . . . cannot be shown to be void except in certain ways”].)

Hoehn argues that “legislative history demonstrates an insistence that section 473[, subdivision ](d)” has no “time limit.” For support of that contention, Hoehn quotes language in cases from 1938 and 1940 that reference legislative intent that trial courts have the power to set aside void judgments. This language does not speak to legislative intent concerning a time limit within which a party must ask a trial court to exercise such power. Whereas Rogers—a case on which Trackman relied (Trackman, supra, 187 Cal.App.4th at p. 180)—does discuss the question of legislative intent concerning time limits for seeking to set aside void judgments. (See Rogers, supra, 216 Cal.App.3d at pp.

1121-1126.)

Deutsche Bank National Trust Co. v. Pyle (2017) 13 Cal.App.5th 513—which Hoehn also invokes—cites Falahati for the proposition that “[a] void judgment . . . can be set aside at any time.” (Id. at p. 526.)

Hoehn also argues that application of a “two-year limitation to set aside otherwise void judgments . . . leads to absurd results,” because this “allows a judgment that is void for lack of proper service to nonetheless retain its validity.” The flaw in this reasoning is that application of a two-year time limit for motions under section 473, subdivision (d) does not preclude Hoehn from filing an independent action in equity to set aside the facially valid judgment (where the parties may litigate relevant factual questions).

C. Extrinsic Fraud Was Not Demonstrated Hoehn argues the trial court abused its discretion by failing to vacate the default judgment “due to extrinsic fraud and mistake.”

As a preliminary matter, we will not consider for the first time on appeal an argument by Hoehn regarding extrinsic mistake. (See DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 676 [an argument or theory generally will not be considered if it is raised for the first time on appeal, because it would be unfair to the other party and the trial court].) Though Hoehn argued extrinsic fraud in the trial court, he did not clearly advance a theory of extrinsic mistake.

On the merits, and setting aside our concerns that Hoehn has failed to present developed appellate argument on the issue of extrinsic fraud,7 we conclude the trial court

Here, Hoehn offers no argument that Capital Insurance or the company’s attorney “ ‘ “has by inequitable conduct . . . lulled [him] into a state of false security.” ’ ” (Gibble v. Car-Lene Research, Inc., supra, 67 Cal.App.4th at p. 314.) Rather, Hoehn’s opening brief jumps straight to the three additional elements necessary to demonstrate eligibility did not abuse its discretion in rejecting the claim. (Rodriguez, supra, 236 Cal.App.4th at p. 749 [standard of review].) This is so, because “Evidence Code section 647 provides that a registered process server’s declaration of service establishes a presumption that the facts stated in the declaration are true. [Citation.] A plaintiff may serve individual defendants through substitute service when they cannot be personally served with reasonable diligence. [Citations.] . . . ‘Two or three attempts to personally serve a defendant at a proper place ordinarily qualifies as “ ‘reasonable diligence.’ ” [Citation.]

The registered process server in this case declared under penalty of perjury that [s]he had effected substitute service on [Hoehn] by serving [Hoehn’s then-girlfriend at Hoehn’s residence], after [four] attempts to personally serve [Hoehn] at his [residence]. . . . This is not evidence showing that [California Capital] or [its] counsel practiced fraud on him.” (Rodriguez, supra, 236 Cal.App.4th at pp. 750-751.)

In the trial court, Hoehn argued that California Capital (via the process server) “falsely claimed that [his] girlfriend . . . was a ‘[c]o-[o]ccupant’ ” of his San Mateo residence. But even if the process server was wrong about Hoehn’s then-girlfriend’s status at Hoehn’s residence, that error by itself does not indicate fraud. (Cf. Bein v. Brechtel-Jochim Group, Inc. (1992) 6 Cal.App.4th 1387, 1393 [As “ ‘[t]he evident purpose of . . . section 415.20 is to permit service to be completed upon a good faith attempt at physical service on a responsible person,’ ” “[s]ervice must be made upon a person whose ‘relationship with the person to be served makes it more likely than not that

for relief from default judgment on grounds of extrinsic fraud. Accordingly, there is good reason to conclude that Hoehn has forfeited an “extrinsic fraud” argument on appeal. (See Oak Valley Hospital Dist. v. State Dept. of Health Care Services (2020) 53 Cal.App.5th 212, 228 [“For lack of development, this argument is forfeited”]; Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52 [“We are not required to examine undeveloped claims or to supply arguments for the litigants”].) they will deliver process to the named party,’ ” (italics added and original italics omitted)].)

D. Abandoned Claim In his opening brief, Hoehn raised a claim of trial court error regarding certain evidentiary rulings. Because Hoehn abandons this claim in his reply brief, we do not address it.

III. DISPOSITION The order denying Hoehn’s motion to set aside default and default judgment is affirmed. Respondents shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

/S/ RENNER, J.

We concur:

/S/ HULL, Acting P. J.

/S/ HOCH, J.