Myers v. Munoz CA1/4

Filed 7/24/13 Myers v. Munoz CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

FRANK MYERS, Plaintiff and Respondent, A137556 v. CHRISTINA MUNOZ, (Marin County Super. Ct. No. CIV 1005608) Defendant and Appellant.

I. INTRODUCTION Appellant and defendant Christina Munoz (Munoz) appeals from a trial court order denying her motion to set aside a default judgment brought under Code of Civil Procedure sections 473, subdivision (d), and 473.5.1 The judgment was entered in favor of respondent and plaintiff Frank Myers (Myers) in the amount of $37,234.50. Munoz’s motion to set aside the judgment was based on her allegation that she was never served with Myers’s lawsuit. We conclude the trial court did not err or abuse its discretion in denying Munoz’s motion to set aside the judgment because the motion was not timely filed. Therefore, we affirm the ruling and resultant judgment.

1 All further statutory references are to the Code of Civil Procedure, unless otherwise indicated.

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II. PROCEDURAL HISTORY A complaint was filed by Myers in Marin County Superior Court on October 22, 2010, using Judicial Council form PLD-C-001, alleging that Munoz had defaulted in making payments as required by a promissory note and security agreement entered into between the parties, who are former spouses. The complaint alleged that more than $30,000 was due and owing pursuant to that agreement. “Proof of Service Summons” using Judicial Council form POS-010 was filed by Myers’s counsel on January 13, 2011. The pleading indicated that service of the summons, complaint, and related documents was made on November 4, 2010, by Richard Snell, a California registered process server. Snell effected service by substitute service of a female occupant of 1555 Briarfield Place, Santa Rosa, California, who refused to identify herself. In his declaration which accompanied the proof of service, Snell stated that he attempted to personally serve the summons, complaint, and related documents at that address on five prior occasions between October 27 and November 4, 2010, without success. Snell declared under penalty of perjury that at 7:40 p.m. on November 4, 2010, service of process occurred as follows: “Sub-serve. Lights were on with activity inside [1555 Briarfield Place]. Female came to front window. I showed her the papers and asked for the subject. She refused to open the door. I told her the nature of the papers, and drop served. There was a gold Lincoln Continental in the driveway. Lic #3PTX377.” Snell described the person who refused to identify herself [“Jane Doe”] as being a female, 50 years old “Hispanic,” who had black hair and who weighed 160 pounds. On January 13, 2011, Myers’s counsel filed a request to have a default judgment entered, and judgment was entered by the court on January 28, 2011. More than 17 months later, on August 3, 2012, Munoz filed a motion to set aside the default judgment. The motion was made under both sections 473, subdivision (d), and 473.5, and alleged that no proper service of the summons and complaint had been