Preovolos Lewin, ALC v. Ponce CA4/1 ( 2023 )

Filed 5/2/23 Preovolos Lewin, ALC v. Ponce CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
PREOVOLOS LEWIN, ALC, D080406
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2021-
00034729-CU-BC-CTL)
AURORA PONCE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
John Meyer, Judge. Affirmed.
Aurora Ponce, in pro. per., for Defendant and Appellant.
Preovolos Lewin, ALC and James M. Hester for Plaintiff and
Respondent.
Aurora Ponce appeals a default judgment entered against her and in
favor of Preovolos Lewin, ALC (Preovolos Lewin) on March 23, 2022. She
contends she did not receive actual notice of the lawsuit until after the
default judgment was entered and argues Code of Civil Procedure1 section
473.5 allows a court to set aside a default judgment in that circumstance.
Ponce did not, however, file a motion seeking that relief below. We affirm the
default judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Preovolos Lewin filed a form complaint against Ponce for breach of
contract and common counts, on August 13, 2021. Attached to the complaint
was an attorney-client fee agreement between Preovolos Lewin (the
attorney), and Ponce and Robert B. Ryan (the clients). The complaint sought
damages in the amount of $25,464.96, plus fees and costs.
On September 9, 2021, Preovolos Lewin filed a proof of service of the
summons and complaint by substituted service. The proof of service stated
that on August 29, 2021, a registered process server left the summons and
complaint with a male occupant at 5313 Old Dairy Court, Bonita, California
91902 (the Old Dairy Court address). A declaration of mailing certified that
the summons and complaint were mailed to the Old Dairy Court address the
next day. A declaration of diligence showed that the process server
previously attempted to personally serve Ponce at the Old Dairy Court
address on August 19, 22, 24, and 26, 2021.
Preovolos Lewin filed a request for entry of default and a clerk’s
judgment. On March 23, 2022, the clerk entered a default judgment against
Ponce in the amount of $27,905.71, including fees and costs.
On April 1, 2022, Ponce filed an ex parte application, which stated that
the type of relief requested was “REMOTE APPEARANCE (PLAINTIFF
1 All further statutory references are to the Code of Civil Procedure
unless otherwise specified.
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UNKNOW)” and the reason ex parte relief was necessary was “SUMMARY
OF PLAINTIFF.” Ponce appeared for the hearing on her own behalf and
counsel for Preovolos Lewin also appeared. The minute order indicates the
court “state[d] it is unclear as to today’s ex parte request.” After clarification
that default judgment was entered against Ponce, and after inquiry of Ponce
regarding her request, the court stated “it appears defendant is request[ing] a
Motion to Set Aside Judgment. . . . The Court having heard from defendant
and counsel states it cannot do anything this morning. The Court suggests
defendant seek legal counsel.”2
Ponce did not file any other motion in the superior court and instead
filed the instant appeal from the default judgment.
DISCUSSION
Ponce’s only argument on appeal is that section 473.5 allows a court to
set aside a default judgment when a defendant did not receive actual notice of
a lawsuit. She contends she did not receive actual notice of Preovolos Lewin’s
lawsuit until after the default judgment was entered and collections started.
Without any support in the record, she claims she moved from the Old Dairy
Court address in December 2020, she had no contact or connection to anyone
at that address, and Preovolos Lewis knew where her business was located
but made no attempt to serve her at that location.3
Section 473.5 provides in pertinent part: “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
2 There is no reporter’s transcript for this hearing.
3 Ponce either provides no record citations, or the pages in the record she
cites to do not support these factual assertions.
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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 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.” (§ 473.5, subd. (a).)
A person may be properly served but lack actual notice of the litigation.
“Actual notice” under section 473.5 means genuine knowledge of the party
litigant. (Ellard v. Conway (2001) 94 Cal.App.4th 540, 547.) We review the
court’s findings regarding actual notice for abuse of discretion. (Ibid.)
Ponce contends for the first time on appeal that she did not receive
actual notice of the summons and complaint until after default judgment was
entered against her. However, she did not make a motion below to set aside
the default judgment under section 473.5. She was required to present these
arguments to the trial court in the first instance, with supporting evidence,
and within the time frames provided. (See DiCola v. White Brothers
Performance Products, Inc. (2008) 158 Cal.App.4th 666, 676 [an argument
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].)
An argument that a judgment is void on its face can be reviewed for the
first time on appeal because it does not depend on evidence and raises a
purely legal question. (See e.g., Trackman v. Kenney (2010) 187 Cal.App.4th
175, 185 [considering, for the first time on appeal, argument that proof of
substitute service was void on its face because it did not recite the true name
of the person given the summons, who was instead identified as “John Doe,
co-resident”].) “A judgment ‘is considered void on its face only when the
invalidity is apparent from an inspection of the judgment roll or court record
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without consideration of extrinsic evidence.’ [Citation.] When a default
judgment has been taken, the judgment roll consists of ‘the summons, with
the affidavit or proof of service; the complaint; the request for entry of
default . . . , and a copy of the judgment.’ (§ 670, subd. (a).)” (Kremerman v.
White (2021) 71 Cal.App.5th 358, 370.)
However, Ponce does not argue that the default judgment is void on its
face. And her claim that she did not live at the address listed on the proof of
service amounts to an argument that the judgment is valid on its face but
void for improper service. (Ellard v. Conway, supra, 94 Cal.App.4th at p. 544
[under § 473, subd. (d), court may set aside default judgment that is valid on
its face, but void due to improper service].) This argument requires
consideration of extrinsic evidence (Evid. Code, § 647 [service by a registered
process server creates a presumption that service was proper, which must be
overcome by admissible evidence]), again, something we cannot do for the
first time on appeal. (Kremerman v. White, supra, 71 Cal.App.5th at p. 370
[“If the invalidity [of a default judgment can be shown only through
consideration of extrinsic evidence, such as declarations or testimony, the
order/judgment is not void on its face”].) We express no opinion, either
procedurally or on the merits, as to the propriety of a motion to set aside the
default judgment below.
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DISPOSITION
The default judgment is affirmed. Preovolos Lewin to recover costs on
appeal.
CASTILLO, J.
WE CONCUR:
McCONNELL, P. J.
BUCHANAN, J.
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