Filed 6/30/21 Jones v. Halfacre CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

KIMBERLY JONES,

Plaintiff and Respondent,

 v. 

ERIC M. HALFACRE,

Defendant and Appellant.

B303380

(Los Angeles County

Super. Ct. No. SC123365)

 

APPEAL from a postjudgment order of the Superior Court 

of Los Angeles County, Marc D. Gross, Judge. Affirmed.

Gardner + Associates, Jennifer B. Gardner, Booth, Hillary 

Arrow Booth and Allan P. Bareng for Defendant and Appellant. 

Nossaman, Jennifer L. Meeker and Maya G. Hamouie for 

Plaintiff and Respondent. 

__________________________
2

Erik M. Halfacre (erroneously sued as Eric M. Halfacre) 

appeals the order denying his motion to vacate the default 

judgment for more than $1 million entered in favor of Kimberly 

Jones. Halfacre contends the trial court erred in denying his 

motion as untimely, concluding the default judgment was not 

void on its face and declining to grant relief pursuant to its 

equitable powers. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Complaint, Service by Publication and Entry of 

Default and Default Judgment

On November 6, 2014 Jones sued Halfacre and MJH Sales, 

Inc. for conversion, fraud, breach of contract of bailment and 

rescission.1 According to the allegations in her complaint, in July 

2014 Jones contracted with Halfacre to sell some of her unwanted 

jewelry. Jones had a business relationship with Halfacre because

she and her ex-husband had frequented Halfacre’s parents’ 

jewelry store, where Halfacre had worked. Based on Halfacre’s 

representations that he was fully insured, Jones consigned 

jewelry worth in excess of $3.5 million to Halfacre to sell on her 

behalf. 

Shortly after entering into the agreement Jones received 

$400,000 as a good faith advance from Halfacre for the 

anticipated sale of her jewelry. Without approval from Jones, 

Halfacre then purported to complete a sale of all but five pieces of 

jewelry to MJH Sales for $453,200. Jones alleged she objected to 

the sale, demanded the return of her jewelry and offered to 

1

Jones asserted the recission cause of action only against 

MJH Sales. MJH Sales was dismissed from the case and is not a 

party to this appeal.
3

return the $400,000 advance. Halfacre informed Jones the sale 

was completed and could not be unwound. Halfacre returned 

some, but not all, of the unsold jewelry. Taking into account the 

$400,000 advance, Jones alleged, “the value of the subject jewelry 

exceeded the paid amount(s) by an amount exceeding $1,000,000 

to be proven at trial.” In her prayer for relief Jones sought 

damages “including without limitation the difference between the 

fair market value of the jewelry and the advance payment she 

received, according to proof but in no [event] less than the 

jurisdictional minimum of this Court.” The civil case cover sheet

identified a Marina del Rey address for Halfacre. 

On February 2, 2015 Jones filed an application for service 

by publication using the Los Angeles Superior Court’s approved 

form. Her attorney, Gary Kurtz, declared the summons and 

complaint could not be served by any other available methods, 

including by mail. Kurtz requested publication in the “Daily 

Journal” as the newspaper most likely to give notice and averred 

Halfacre was “actively avoiding service and reasonable diligence 

has been used to attempt service.” Jones’s investigator, Daniel 

Thibodeau, declared he “spent approximately two weeks working 

on the service of Mr. Halfacre.” Thibodeau had located “possible 

addresses in San Diego, Orange and Los Angeles counties, and 

went to each address.” At the San Diego address Thibodeau 

“found no evidence . . . [that] Mr. Halfacre was still residing at 

that address.” Likewise, the address in the San Fernando Valley 

“did not appear to be a valid lead.” At the initial Orange County 

address Thibodeau spoke with Halfacre’s ex-wife, who provided a 

current address for Halfacre elsewhere in Orange County (in 

Corona del Mar). Thibodeau went to the new address on 

December 22, 2014 and “was able to confirm that it was a valid 
4

address for Mr. Halfacre.” He observed a vehicle registered to 

Halfacre’s wife at the house. Also, “[i]t appeared that 

Mr. Halfacre was present in the house, but he would not come to 

the door.” Thibodeau spent seven hours “in surveillance, but 

[Halfacre] would not come to the door.” Eight days later 

Thibodeau returned to the Orange County address, spending 

nearly nine hours in travel and surveillance. Again, Thibodeau 

observed the vehicle registered to Halfacre’s wife, and “[i]t 

appeared that Mr. Halfacre was in the residence but would not 

come out to be served.” Thibodeau opined that Halfacre was 

aware of the lawsuit and actively evading service. In his opinion, 

given “the extreme difficulty in serving a person who is actively 

attempting to evade service . . . service by publication is the only 

effective means of achieving service.” 

The trial court issued the requested order on February 2, 

2015 and ordered publication in the Los Angeles Daily Journal. 

The court also ordered Jones to mail Halfacre a copy of the 

summons and complaint if she was able to ascertain his address 

during the publication period and to file “[a] declaration of this 

mailing, or of the fact that the address was not ascertained.” On 

April 7, 2015 a proof of service by publication was filed. 

On May 19, 2015 Jones filed a request for entry of default 

against Halfacre. She submitted a copy of the publication notice 

from the Los Angeles Daily Journal. Halfacre’s default was 

entered the same day.
5

On June 8, 2015 Jones filed a request for entry of default 

judgment. On the same day the trial court entered a default 

judgment against Halfacre in the amount of $3,202,299.50.2 

2. Halfacre’s Motion To Set Aside the Default Judgment

Nearly four years later, on April 4, 2019, Halfacre moved to 

set aside the default judgment seeking relief pursuant to Code of 

Civil Procedure sections 473, subdivision (d), 473.5 and 580, 

subdivision (a).

3

 Halfacre asserted he first became aware of the 

default judgment when he was personally served with an order to 

appear for a debtor’s examination on January 23, 2019 and

argued the judgment was void for lack of proper service, he 

lacked actual notice of the lawsuit, and the $3.2 million judgment 

impermissibly exceeded the damages alleged in the complaint. 

With respect to service by publication, Halfacre contended Jones

had failed to exercise reasonable diligence in attempting to serve

him by another acceptable method, including by mail. Halfacre 

submitted a declaration stating he had been living in Corona del 

Mar when Jones attempted to personally serve him in December 

2014 with the summons and complaint and had not (and would 

not have) evaded service given he had meritorious defenses 

against Jones’s claims. Halfacre also stated his mail was 

forwarded from his former Marina del Rey address to his Corona 

del Mar address and, had he been mailed a copy of the summons 

and complaint, he would have received notice of the lawsuit and 

defended himself. 

2

Judge Gerald Rosenberg issued the order for service by 

publication and entered the default judgment against Halfacre. 

3

Statutory references are to this code.
6

Jones opposed Halfacre’s motion, arguing the motion was 

untimely; the application for service by publication was valid; 

and the judgment was not void for any reason, including by 

exceeding the amount of damages alleged in the complaint. 

Although emphasizing that extrinsic evidence could not be 

considered in determining whether the judgment was void, Jones 

nonetheless submitted declarations from herself, Kurtz and 

Thibodeau. Kurtz stated that, prior to filing the lawsuit, he was 

in communication with Halfacre by email, but that Halfacre had

told him to stop contacting him. Kurtz also informed Halfacre’s

bankruptcy lawyer about the lawsuit Jones intended to file but 

never received a response. Kurtz recalled receiving three 

possible addresses for Halfacre from Thibodeau, which included 

the Marina del Rey address that was listed on the civil case cover 

sheet. Kurtz mailed a copy of the summons and complaint to 

each address Thibodeau found for Halfacre, including the 

Corona del Mar address where Halfacre was subsequently 

located. Kurtz stated the summons and complaint mailed to the 

Marina del Rey and Corona del Mar addresses were not returned

to him. Thibodeau stated in his declaration that he “was able to 

ascertain [Halfacre’s] actual address in December 2014, which I 

believe was [street number deleted] Heliotrope, Corona [d]el Mar, 

California.” Thibodeau declared he had spoken with Halfacre 

through the door and informed him he was a process server there 

to serve him with papers from Jones, but Halfacre would not 

open the door.

Halfacre filed a reply arguing for the first time that the 

trial court should exercise its equitable powers to set aside the 

judgment based on extrinsic fraud, primarily based on the 

declarations submitted by Jones establishing she knew Halfacre 
7

lived in Orange County but misled the trial court in her 

application for service by publication by stating service could not 

be completed in any other manner. Halfacre also argued he had 

meritorious defenses against Jones’s claims, which he would have 

asserted had he known about the lawsuit. 

At the hearing on the motion, in addition to the arguments 

initially presented in the moving papers, Halfacre’s counsel asked 

the court to exercise its equitable powers to vacate the default 

judgment based on unfairness as demonstrated by the extrinsic 

evidence. Jones’s counsel again noted the motion was untimely 

and argued Halfacre had forfeited any argument that the trial 

court should exercise its equitable powers to vacate the judgment. 

However, with respect to the amount of the judgment, Jones’s 

counsel conceded “a $1 million judgment is absolutely 

appropriate.” 

The trial court denied relief pursuant to sections 473.5 and 

473, subdivision (d), because the motion was untimely.4The 

court further ruled the judgment was not void on its face, 

explaining Halfacre had cited “no legal authority holding that a 

declaration regarding reasonably diligent service attempts that 

lacks sufficient detail renders the judgment void on its face.” The 

court also denied Halfacre’s request to set aside the judgment due 

to extrinsic fraud because the argument was not raised until the

reply brief. Even if it were to consider the belated request, the 

court concluded, there was insufficient persuasive evidence of 

extrinsic fraud given Kurtz’s declaration that he had mailed the 

4

Judge Marc D. Gross issued the ruling on Halfacre’s motion 

to vacate judgment.
8

summons and complaint to the Corona del Mar and Marina 

del Rey addresses, which were never returned to him. 

As to the issue of damages, the court found the only definite 

allegations in the complaint were for $1 million. The court 

modified the default judgment accordingly, including the award 

of prejudgment interest. An amended judgment was entered, 

nunc pro tunc, on December 6, 2019 for $1,071,066.62. 

Halfacre filed a timely notice of appeal. 

DISCUSSION

1. Standard of Review

Section 473, subdivision (d), provides a trial court “may, on 

motion of either party after notice to the other party, set aside 

any void judgment or order.” “[I]nclusion of the word ‘may’ in the 

language of section 473, subdivision (d) makes it clear that a trial 

court retains discretion to grant or deny a motion to set aside a 

void judgment [or order].” (Cruz v. Fagor America, Inc. (2007) 

146 Cal.App.4th 488, 495.) However, the trial court “has no 

statutory power under section 473, subdivision (d) to set aside a 

judgment [or order] that is not void.” (Id. at pp. 495-496.)

The reviewing court “generally faces two separate 

determinations when considering an appeal based on section 473, 

subdivision (d): whether the order or judgment is void and, if so, 

whether the trial court properly exercised its discretion in setting 

it aside.” (Nixon Peabody LLP v. Superior Court (2014) 

230 Cal.App.4th 818, 822.) The trial court’s determination 

whether an order is void is reviewed de novo; its decision whether 

to set aside a void order is reviewed for an abuse of discretion.

(Ibid.; see Airs Aromatics, LLC v. CBL Data Recovery 

Technologies, Inc. (2018) 23 Cal.App.5th 1013, 1018; Cruz v. 

Fagor America, Inc., supra, 146 Cal.App.4th at p. 496.)
9

2. The Trial Court Did Not Err in Denying Halfacre’s 

Motion To Set Aside the Default Judgment Pursuant to 

Section 473, Subdivision (d)

a. A default judgment can be challenged at any time 

only if void on its face

Effectively conceding the trial court properly denied as 

untimely his motion to set aside the default judgment pursuant 

to section 473.5, subdivision (a), for lack of actual notice of 

Jones’s lawsuit,5 Halfacre contends the motion was timely 

pursuant to section 473, subdivision (d), because that statute

imposes no time limit to challenge a void judgment. Halfacre is 

only partially correct.

“In determining whether an order is void for purposes of 

section 473, subdivision (d), courts distinguish between orders 

that are void on the face of the record and orders that appear 

valid on the face of the record but are shown to be invalid 

through consideration of extrinsic evidence.” (Pittman v. Beck 

Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1021

(Pittman).) “This distinction may be important in a particular 

case because it impacts the procedural mechanism available to 

5 When moving to vacate a judgment because the service of 

summons did not result in actual notice of the lawsuit, 

section 473.5, subdivision (a), requires the motion to be “served 

and filed within a reasonable time, but in no event exceeding the 

earlier of: (i) two years after entry of a default judgment against 

him or her; or (ii) 180 days after service on him or her of a written 

notice that the default or default judgment has been entered.” 

(See Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180 

[applying statute and concluding section 473.5 does not offer 

defendant “an avenue for relief because [defendant’s] motion was 

filed over two years after the entry of judgment”].) 
10

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 [or order] is void.” (OC Interior 

Services, LLC v. Nationstar Mortgage, LLC (2017) 7 Cal.App.5th 

1318, 1326 (OC Interior Services).) 

There is no time limit to challenge a judgment void on its 

face. (See Pittman, supra, 20 Cal.App.5th at p. 1021; OC Interior 

Services, supra, 7 Cal.App.5th at p. 1326; Ramos v. Homeward 

Residential, Inc. (2014) 223 Cal.App.4th 1434, 1440.) However, 

“[w]here 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.” (Trackman v. 

Kenney (2010) 187 Cal.App.4th 175, 180; accord, Bae v. T.D. 

Service Co. of Arizona (2016) 245 Cal.App.4th 89, 97 [relief is 

subject to the time period specified in section 473.5 when the 

party seeking relief maintains the judgment, although facially 

valid, is void due to lack of proper service of process]; see 

Pittman, at p. 1021 [“If the invalidity can be shown only through 

consideration of extrinsic evidence, such as declarations or 

testimony, the order is not void on its face. Such an order must 

be challenged within the six-month time limit prescribed by 

section 473, subdivision (b), or by an independent action in 

equity”]; OC Interior Services, at p. 1328; Ramos, at p. 1440; 

Plaza Hollister Ltd. Partnership v. County of San Benito (1999) 

72 Cal.App.4th 1, 19.) 

Halfacre filed his motion to vacate the default judgment 

nearly four years after judgment had been entered. Thus, the 

trial court did not err in concluding Halfacre’s motion was 
11

untimely pursuant to section 473, subdivision (d), to the extent

he relied on extrinsic evidence to prove the default judgment was 

void. However, as Halfacre contends, his motion was timely

pursuant to section 473, subdivision (d), if he could demonstrate 

the judgment was void on its face. 

b. The default judgment was not void on its face

Halfacre contends the judgment was void on its face 

because the application for publication failed to show “reasonable 

diligence” in trying to serve Halfacre by other available methods 

and publication was ordered in the Los Angeles Daily Journal 

despite Jones’s knowledge of Halfacre’s valid address in Orange 

County.6 

“To prove that the judgment is void [on its face], the party 

challenging the judgment is limited to the judgment roll, i.e., no 

extrinsic evidence is allowed.” (OC Interior Services, supra, 

7 Cal.App.5th at p. 1327; accord, Tearlach Resources Limited v. 

Western States Internat., Inc. (2013) 219 Cal.App.4th 773, 779

[same].) Section 670, subdivision (a), defines “judgment roll” as 

including “the summons, with the affidavit or proof of service; the 

6 Halfacre also argues Jones’s application for service by 

publication was defective because section 415.50, 

subdivision (a)(1), requires the application include an affidavit 

that “[a] cause of action exists against the party upon whom 

service is to be made or he or she is a necessary or proper party to 

the action.” Jones submitted the superior court’s approved form 

for service by publication, which included a signed declaration 

that she believed Halfacre was “a necessary party to my 

complaint or petition on file herein, or the complaint or petition 

correctly states a cause of action against defendant/respondent.” 

Halfacre has failed to demonstrate this declaration was 

insufficient.
12

complaint; the request for entry of default with a memorandum 

indorsed thereon that the default of the defendant in not 

answering was entered, and a copy of the judgment; . . . and in 

case the service so made is by publication, the affidavit for 

publication of summons, and the order directing the publication 

of summons.” Here, the affidavits submitted by Jones, Kurtz and 

Thibodeau in support of service by publication of the summons

are part of the judgment roll. 

Section 415.50, subdivision (a), provides service may be 

completed by publication “if upon affidavit it appears to the 

satisfaction of the court in which the action is pending that the 

party to be served cannot with reasonable diligence be served in 

another manner specified in this article.” Because “[p]ersonal 

service remains the method of choice under the statutes and the 

constitution,” the requirements for service by publication of the 

summons must be strictly construed. (Olvera v. Olvera (1991) 

232 Cal.App.3d 32, 41; see Calvert v. Al Binali (2018) 

29 Cal.App.5th 954, 963 [collecting cases].) In construing 

compliance with the statute, we “consider not only the affidavit 

itself, but the facts demonstrated by the applicant.” (Olvera, at 

p. 42.) 

Section 415.50, subdivision (b), in turn, provides, if service 

by publication is ordered the “court shall order the summons to 

be published in a named newspaper, published in this state, that 

is most likely to give actual notice to the party to be served” and 

that the “order shall direct that a copy of the summons, the 

complaint, and the order for publication be forthwith mailed to 
13

the party if his or her address is ascertained before expiration of 

the time prescribed for publication of the summons.”7 

Thibodeau’s declaration established Jones’s reasonable 

diligence in attempting to personally serve Halfacre. Thibodeau

stated he had a valid address for Halfacre in Orange County. 

Although Thibodeau believed Halfacre was inside the house, 

Halfacre would not come to the door and did not venture outside

during the many hours Thibodeau watched the residence. Based 

on his observations and professional experience, Thibodeau 

concluded that Halfacre was evading service. As the court 

observed in Olvera v. Olvera, supra, 232 Cal.App.3d at page 42,

“It is not actual ignorance that permits resort to service by 

publication, but the inability to accomplish personal service 

despite the exercise of reasonable diligence.” Notwithstanding 

Jones’s efforts to personally serve Halfacre, it was Halfacre’s 

conduct that prevented service. (See Miller v. Superior Court

(1961) 195 Cal.App.2d 779, 786 [“[a] person who deliberately 

conceals himself to evade service of process is scarcely in a 

position to complain overmuch of unfairness in substitutive 

methods of notification enacted by the Legislature to cope with 

such situations”].) 

7 As discussed, the trial court’s order for service by

publication included an order directing Jones to mail Halfacre a 

copy of the summons and complaint if his address was

ascertained before expiration of the time prescribed for 

publication and to file a declaration of mailing or indicating the 

address could not be determined. Although, as Halfacre asserts, 

the appellate record does not indicate Jones complied with this 

requirement, Halfacre provides no authority that the declaration 

or its absence is properly considered part of the judgment roll.
14

As for publication of the summons in the Los Angeles Daily 

Journal, Halfacre has not pointed to anything in the judgment 

roll to support his contention the newspaper did not circulate in 

Orange County.8 Halfacre’s reliance on Olvera v. Olvera, supra, 

232 Cal.App.3d 32 in this regard is misplaced. In Olvera the 

court of appeal affirmed an order granting the defendant’s motion 

to set aside a default judgment pursuant to section 473.5. 

(Olvera, at p. 41.) The court concluded that service by publication 

was invalid. (Ibid.) Although the plaintiffs were aware of the 

defendant’s general whereabouts, there was “no indication [in the 

affidavit in support of service by publication] that they had 

employed any of the usual means to find her.” (Id. at p. 42.)

Further, the affidavit in support of publication affirmatively 

stated that “‘Defendant no longer resides in Riverside, [CA],’” but 

the application for publication sought, and the trial court 

ordered, publication of the summons in the Press-Enterprise, a 

newspaper of general circulation published in Riverside. (Id. at

p. 36.) Taken together, the court concluded defective service by 

publication rendered the judgment void. (Id. at p. 41.)

The circumstances rendering the judgment void in Olvera 

are not present here. As discussed, Jones demonstrated 

reasonable diligence in locating and attempting to personally 

serve Halfacre with the summons and complaint. Further, 

nothing in the judgment roll indicates the Los Angeles Daily 

8 Earlier this year, referring to both out-of-state authority 

and law review discussions, we recognized, as a practical matter, 

service by publication “‘is almost guaranteed not to provide a 

defendant with notice of the action.’” (Searles v. Archangel (2021) 

60 Cal.App.5th 43, 47.) But that is not the issue presented by 

Halfacre’s argument the Jones’s judgment is void on its face.
15

Journal does not circulate within Orange County in a manner 

that satisfies the requirements of section 415.50, subdivision (b). 

Because Halfacre failed to establish the judgment was void 

on its face, the trial court had “no statutory power under 

section 473, subdivision (d)” to set aside the default judgment. 

(See Cruz v. Fagor America, Inc., supra, 146 Cal.App.4th at 

pp. 495-496.)

3. The Trial Court Did Not Err in Declining To Exercise Its 

Equitable Powers To Grant Relief

In addition to the court’s statutory authority pursuant to

section 473, subdivision (b), to set aside defaults for mistake or

excusable neglect, “‘courts have the inherent authority to vacate

a default and default judgment on equitable grounds such as

extrinsic fraud or extrinsic mistake.’ [Citation.] The court’s

ability to grant relief under its inherent power is narrower than

its ability to grant relief under section 473, subdivision (b).

[Citation.] This is especially true after a default judgment has

been entered. ‘A party who seeks to set aside a default judgment

pursuant to the court’s equity power must make a substantially

stronger showing of the excusable nature of his or her neglect

than is necessary to obtain relief under . . . section 473.’ 

[Citation.] As our Supreme Court has explained, ‘[w]hen a

default judgment has been obtained, equitable relief may be

given only in exceptional circumstances. “[W]hen relief under

section 473 is available, there is a strong public policy in favor of

granting relief and allowing the requesting party his or her day

in court. Beyond this period there is a strong public policy in

favor of the finality of judgments and only in exceptional

circumstances should relief be granted.”’” (Kramer v. Traditional 
16

Escrow, Inc. (2020) 56 Cal.App.5th 13, 29; see Rappleyea v. 

Campbell (1994) 8 Cal.4th 975, 981.) 

Halfacre did not seek to set aside the default judgment 

based on unfairness and extrinsic fraud pursuant to the court’s 

equitable power until his reply brief, although he contends he 

argued the facts supporting a finding of extrinsic fraud in his 

opening brief. The rationale for the well-recognized appellate 

rule that points raised for the first time in a reply brief will 

ordinarily not be considered because it would deprive the 

respondent of an opportunity to counter the argument (see, e.g., 

Aptos Council v. County of Santa Cruz (2017) 10 Cal.App.5th 266, 

296, fn. 7; Altavion, Inc. v. Konica Minolta Systems Laboratory,

Inc. (2014) 226 Cal.App.4th 26, 63) applies equally to motions in 

the trial court. (See, e.g., St. Mary v. Superior Court (2014) 

223 Cal.App.4th 762, 783; cf. Plenger v. Alza Corp. (1992) 

11 Cal.App.4th 349, 362, fn. 8.) The trial court’s ruling that 

Halfacre’s request was not properly before it was well within the 

court’s discretion.9

Notwithstanding its forfeiture ruling, however, the trial 

court considered Halfacre’s argument and found there was 

insufficient evidence of extrinsic fraud to justify setting aside the 

default judgment. That ruling, too, was well within the court’s 

discretion. (See Rappleyea v. Campbell, supra, 8 Cal.4th at 

p. 981 [challenge to a trial court’s order denying a motion to 

vacate a default on equitable grounds is reversed for an abuse of 

discretion]; County of San Diego v. Gorham (2010) 

9 When the trial court stated it would not consider 

“unfairness” as a basis for relief at the hearing, Halfacre’s 

attorney did not object or argue he had raised the point in his 

opening brief. 
17

186 Cal.App.4th 1215, 1230 [same]; see also Falahati v. Kondo

(2005) 127 Cal.App.4th 823, 828 [“[o]n appeal from an order 

denying a motion for relief from default or a default judgment we 

will not disturb the trial court’s factual findings where, as here, 

they are based on substantial evidence”].)

Extrinsic fraud or extrinsic mistake are terms “broadly 

applied when circumstances extrinsic to the litigation have 

unfairly cost a party a hearing on the merits.” (Rappleyea v. 

Campbell, supra, 8 Cal.4th at p. 981.) To set aside a judgment 

based upon extrinsic fraud or mistake, a defendant must satisfy 

three elements: (1) the defaulted party must demonstrate that it 

has a meritorious case; (2) the party seeking to set aside the 

default must articulate a satisfactory excuse for not presenting a 

defense to the original action; and (3) the moving party must 

demonstrate diligence in seeking to set aside the default once 

discovered. (Id. at p. 982.) 

Emphasizing that Kurtz knew of Halfacre’s addresses in 

Marina del Rey and Corona del Mar, Halfacre identifies as 

extrinsic fraud Kurtz’s statement in support of the request for an 

order permitting service by publication that the summons and 

complaint could not be served by any other method, including 

mail service. However, the evidence, including the declarations 

submitted in support of and opposition to, Halfacre’s motion,

offered competing versions of what happened. The trial court 

accepted Kurtz’s statements that he had mailed copies of the 

summons and complaint to Halfacre’s Marina del Rey and Corona 

del Mar addresses, and those documents were never returned to 

him. Those facts, together with Halfacre’s concession that mail 

from his Marina del Rey address was forwarded to him, 

constitute substantial evidence supporting the court’s finding
18

that “it is likely the summons and complaint was forwarded to 

[Halfacre’s] actual address and he had notice.” (See Pinto v. 

Farmers Ins. Exchange (2021) 61 Cal.App.5th 676, 689 

[substantial evidence may consist of inferences that are the 

produce of logic and reason]; California Assn. of Medical Products 

Suppliers v. Maxwell-Jolly (2011) 199 Cal.App.4th 286, 308 

[“substantial evidence” consists of “‘evidence that is reasonable, 

credible and of solid value,’” including “inferences that are the 

product of logic and reason”].) That finding, which necessarily 

meant Halfacre was not unfairly deprived of a hearing on the 

merits—rather, he was aware of the lawsuit and elected to ignore 

it—fully justified the court’s conclusion there had been no 

extrinsic fraud.

10 Accordingly, the court did not abuse its 

discretion in denying Halfacre’s request for equitable relief.

DISPOSITION

The order denying Halfacre’s motion to set aside the 

default judgment is affirmed. Jones is to recover her costs on 

appeal.

PERLUSS, P. J.

We concur:

SEGAL, J. FEUER, J.

10 Because Halfacre did not respond to the mailed copies of 

the summons and complaint, it was reasonable for Kurtz to 

conclude service by mail pursuant to section 415.30, which 

requires the defendant to sign and return an acknowledgment of 

receipt of summons, was not practicable.