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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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, 

v. 

CHRISTINA MUNOZ, 

 Defendant and Appellant. 

 A137556 

 (Marin County 

 Super. Ct. No. CIV 1005608) 

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 
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made on Munoz, and that she lacked actual knowledge of the proceedings brought against 

her by Myers. 

 Munoz and her adult daughter Morgen submitted declarations supporting the 

motion. They explained that during October and November 2010 (when process 

allegedly was served), they spent much of their time with Munoz’s sick mother in both 

Walnut Creek and Sutter Creek, California. During that timeframe, Munoz spent very 

little time at the Briarfield address. Munoz left the United States for Germany on 

December 6, 2010, where she then stayed for several months. Munoz asserted that she 

did not learn of the default judgment until her counsel in another case filed in Sonoma 

County was served with a notice of lien. 

 During her trip to Europe, Munoz hired someone named “Claudia” to feed her pets 

and check on her mail. Claudia never mentioned receiving the court papers, and Munoz 

denied having received any such documents in the mail before she left. 

 Munoz further denied being “Hispanic,” and stated that the physical description of 

the person observed in her home by Snell did not match her, nor did it match anyone who 

she knew. No one was authorized to be in her home while she was absent. A neighbor 

named “Jean” had a key to Munoz’s house, but she was a blonde and much shorter than 

the person described by Snell. Munoz acknowledged that the vehicle identified by Snell 

as being in her driveway was, in fact, her mother’s car, which was being “stored” there 

long before November 2010. 

 The opposition filed by Myers was supported by a declaration by Snell, who 

confirmed that he had been a registered California process server for over 20 years. He 

described the events of November 4, 2010, when he went to Munoz’s home. After 

ringing the door bell, a woman appeared in the front window who appeared to be a 

“competent member of the household,” not a “worker or a burglar.” She was “well over” 

18 years old. Snell asked her if Munoz was home. The woman refused to let Snell in the 

residence. He showed the woman the summons and complaint he was carrying, and 

shouted to her that he was leaving the papers at the front door. Before he left, he told the 
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woman that if she was not Ms. Munoz she should please see that Munoz received the 

papers. He then sent copies of the papers to the same address by mail. 

 Myers’s counsel also filed a declaration in opposition to the motion. Counsel 

indicated that, in addition to the actions taken by Snell to effect “sub-serv[ice],” counsel 

also sent a letter enclosing a copy of the summons and complaint to Munoz on 

December 7, 2010. Thereafter, counsel sent a notice of request for entry of default 

judgment by mail to the Briarfield address on both January 4 and 13, 2011. When the 

default judgment was obtained, it was sent on January 31, 2011. A notice of lien was 

filed in Sonoma County and sent to Munoz’s counsel on March 1, 2012. The notice of 

lien referenced the default judgment that had been entered in favor of Myers for 

$37,234.50. 

 A hearing on Munoz’s motion to set aside the judgment was held on November 9, 

2012, and the motion denied the same day, without a statement of reasons.2

III. 

ANALYSIS 

 Preliminarily, we note that a motion to set aside a default judgment falls within the 

discretion of the trial court and absent a clear showing of abuse the lower court’s 

determination will not be reversed. (Anastos v. Lee (2004) 118 Cal.App.4th 1314, 1318-

1319; see Ellard v. Conway (2001) 94 Cal.App.4th 540, 547.) 

 Munoz filed her motion for relief from default under both section 473 

subdivision (d), and section 473.5. Pursuant to section 473.5, subdivision (a): “When 

service of a summons has not resulted in actual notice to a party in time to defend the 

action and a default or default judgment has been entered against him or her in the action, 

he or she may serve and file a notice of motion to set aside the default or default 

judgment and for leave to defend the action. The notice of motion shall be served and 

 2

 The transcript of the hearing on the motion alludes to a “lengthy and detailed” 

tentative ruling explaining the trial court’s intended reasoning in denying the motion. 

However, that tentative ruling apparently was not transcribed and is not part of the record 

on appeal. 
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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.” 

 Relief from default may also be awarded under section 473, subdivision (d), which 

provides that “[t]he court may, upon motion of the injured party, or its own motion, 

correct clerical mistakes in its judgment or orders as entered, so as to conform to the 

judgment or order directed, and may, on motion of either party after notice to the other 

party, set aside any void judgment or order.” “Under section 473, subdivision (d), the 

court may set aside a default judgment which is valid on its face, but void, as a matter of 

law, due to improper service. [Citations.]” (Ellard v. Conway, supra, 94 Cal.App.4th at 

p. 544.) 

Myers asserts that Munoz’s motion for relief from the default judgment was 

untimely as it was “made nearly five months after she concedes she had actual notice of 

the judgment and well beyond 180 days from the time the judgment was entered and 

notice of same was given.” He also claims the trial court did not abuse its discretion in 

concluding the service was proper because “[t]he trial court was entitled to believe and 

find credible the proof of service, declaration and statements by Mr. Snell . . . [attesting 

to] his diligent efforts to serve the summons and complaint.” 

 We conclude the trial court did not abuse its discretion in denying Munoz’s 

motion for relief from the default judgment on the ground that it was untimely.3

 As noted 

above, Myers’s counsel sent a notice of request for entry of default judgment by mail to 

the Briarfield address on both January 4 and 13, 2011. When the default judgment was 

obtained, this document also was sent to the Briarfield address on January 31, 2011. 

Munoz’s motion for relief was not filed until August 3, 2012, long after the 180 days 

specified in section 473.5, subdivision (a)(ii) had expired. (Trackman v. Kenney (2010) 

 3

 Again, while the record is not entirely clear, the transcript of the November 9, 

2012 hearing implies that untimeliness was indeed one of the grounds stated in the 

tentative ruling for denying the motion. 
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187 Cal.App.4th 175, 180.) Therefore, on that basis alone, Munoz’s motion for relief 

from default based on section 473.5 was properly denied as untimely. 

 Munoz argues that, even if the motion under section 473.5 was governed by the 

180-day time limit, the motion under section 473, subdivision (d) was not. The only case 

cited close to being on point is Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 

1426 (Dill). In that case, the court held that a motion under section 473 could be made 

within a reasonable time and up to two years after entry of judgment if the service of 

process was void on its face. (Dill, at p. 1444.) However, to fall under the two-year 

maximum time window for vacating a “void” judgment, the defect must appear on the 

face of the judgment; that is, where the “ ‘invalidity is apparent upon an inspection of the 

judgment-roll.’. . .” (Id. at p. 1441, quoting Morgan v. Clapp (1929) 207 Cal. 221, 224.)

 Absent a facially void judgment, “[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. 

[Citations.]” Trackman v. Kenney, supra, 187 Cal.App.4th at p. 180.) 

 Therefore, as in the case of Munoz’s motion brought under section 473.5, her 

motion under section 473 is likewise untimely because there is nothing on the face of the 

judgment supporting the argument that it was void within the meaning of this latter 

statute. 

 There is yet another reason for affirming the trial court’s decision to deny 

Munoz’s motion. In making the motion, the burden was on Munoz to show that due 

diligence was exercised in bringing a motion. This antecedent for relief after actual 

notice has been received is a requirement independent of the statutory deadlines for 

bringing the motion. (Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1183-1185; Kendall 

v. Barker (1988) 197 Cal.App.3d 619, 624-626 (Kendall).) California courts have held 

that “[u]nexplained delays of more than three months in seeking relief from default after 

knowledge of its entry generally result in denial of relief. [Citations.]” (Kendall, at 

p. 625.) 
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 The court in Kendall explained: “ ‘The moving party has a double burden: He [sic] 

must show a satisfactory excuse for his [sic] default, and he [sic] must show diligence in 

making the motion after discovery of the default.’ [Citation.]” (Kendall, supra, 197 

Cal.App.3d at pp. 624-625, italics omitted.) The court held that the defendant in that case 

had failed to show due diligence when the defendant’s attorney learned, six months 

before filing the motion to relief, that the defendant had been served. (Id. at p. 625.) 

 Indeed, when a party fails to show an adequate excuse for delay in bringing the 

motion, it is an abuse of discretion for the trial court to grant relief. (Benjamin v. Dalmo 

Mfg. Co. (1948) 31 Cal.2d 523, 531-532 [abuse of discretion to grant motion under § 473 

when the defendant’s attorney delayed more than three months in filing the motion after 

learning of default and provided no explanation for the delay]; see also Stafford v. Mach, 

supra, 64 Cal.App.4th at pp. 1183-1185 [defendant failed to establish diligence when it 

delayed in bringing motion for relief for four and one-half months after becoming aware 

of default judgment, and “[t]he record [was] devoid of any evidence justifying such a 

long delay”]; Conway v. Municipal Court (1980) 107 Cal.App.3d 1009, 1019 [when the 

defendant failed to provide any explanation for four-month delay in bringing a motion for 

relief, “the court could not excuse and set the default aside as it was not empowered to 

dispense with the ‘reasonable time’ requirement”].) 

 The record in this case shows that legal counsel for both Munoz and Myers 

communicated during March 2012 about the existence of the default judgment. Yet, 

there is no explanation in the trial court record before us why Munoz waited an additional 

five months before filing her motion for relief from default judgment in August 2012. 

Therefore, under applicable case precedents, not only was there no abuse of discretion to 

deny Munoz’s motion to vacate the default judgment, but in the absence of any adequate 

explanation for the five-month delay in bring the motion, it would have been an abuse of 

discretion had the trial court granted it. 
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IV. 

DISPOSITION 

 The trial court’s order denying Munoz relief under sections 473, subdivision (d), 

and 473.5 is affirmed. Myers is awarded his costs on appeal. 

 _________________________ 

 RUVOLO, P. J. 

We concur: 

_________________________ 

REARDON, J. 

_________________________ 

RIVERA, J.