Peters v. Shekoni CA2/5 ( 2021 )

Filed 1/28/21 Peters v. Shekoni CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
TRAVIS PETERS, B302417
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC666494)
v.
YUSUF SHEKONI,
Defendant and
Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, Stephen I. Goorvitch, Judge. Affirmed.
Medvei Law Group, Sebastian M. Medvei, for Plainitiff
and Appellant.
Borton Petrini, Andrew M. Morgan, for Defendant and
Respondent.
__________________________
Plaintiff and appellant Travis Peters appeals from an
order setting aside a default judgment in favor of defendant
and respondent Yusuf Shekoni in this personal injury action
arising from a car accident. On appeal, Peters contends the
trial court erred in granting Shekoni’s motion to set aside
default judgment under Code of Civil Procedure section 473,
subdivision (d),1 because it granted the motion based on
extrinsic evidence that Shekoni did not have actual or
constructive notice of the proceedings although service of
process was facially valid. We conclude that the trial court
properly considered the declarations Shekoni filed in support
of his motion to set aside the default judgment, and affirm
the order.
FACTS AND PROCEDURAL HISTORY
The Complaint and Entry of Default
On June 27, 2017, Peters filed a summons and
complaint alleging negligence and battery against Shekoni
for injuries Peters suffered while riding as an Uber
passenger in Shekoni’s vehicle on December 17, 2016. The
complaint alleged that Shekoni negligently proceeded into
an intersection that another vehicle was illegally traversing,
which resulted in a collision that caused Peters to suffer
1 All further statutory references are to the Code of
Civil Procedure unless otherwise indicated.
2
severe injury.2 The proof of service of summons and
complaint executed by a registered California process server
indicates substituted service was made on “Jane Shekoni
Wife” described as a 40-year-old black female with black
hair, approximately five feet six inches tall and 135 pounds,
at Shekoni’s residence on October 16, 2017. The proof of
service also indicates that the copies of the documents were
mailed to Shekoni at his residence by first-class mail with
prepaid postage on October 16, 2017. The declaration of
diligence states that the process server attempted to serve
Shekoni on three previous occasions at his residence, but
that Shekoni was “unavailable.”
On January 24, 2018, Peters filed a statement of
damages. The proof of service of the statement of damages
executed by a registered California process server indicates
substituted service was made on “Jane Doe” at Shekoni’s
residence on January 20, 2018. No description is provided
for Jane Doe. The declaration of diligence states that the
process server attempted to serve Shekoni on five previous
occasions at his residence, but that Shekoni was
“unavailable.” Peters filed a request for entry of default on
February 1, 2018, which the Clerk of the Superior Court
rejected because there was no physical description of “Jane
Doe” in the proof of service as required.
2 Carolina Gomez, the driver of the other vehicle, was
also a named defendant, but settled with Shekoni and is not
a party to this appeal.
3
On March 7, 2018, Peters filed a second statement of
damages and request for entry of default. The proof of
service of the statement of damages executed by a registered
California process server indicates substituted service was
made on “Jane Doe,” a 30-year-old female co-occupant of
middle eastern ethnicity with black hair, approximately five
feet six inches in height and 140 pounds, at Shekoni’s
residence on January 20, 2018. No declaration of diligence
was filed. The Clerk of the Superior Court again rejected the
request for entry of default, this time because “The dates of
execution and declaration of mailing date CCP 587 must be
updated to reflect a new filing and mailing of default request
to defendant. And dates of execution & declarations should
be within 30 days to the date of filing of request for entry of
default.”
On March 26, 2018, Peters filed a third statement of
damages and request for entry of default. The proof of
service of the statement of damages executed by a registered
California process server indicates substituted service was
made on “Jane Doe,” a 30-year-old female co-occupant of
middle eastern ethnicity with black hair, approximately five
feet six inches in height and 140 pounds, at Shekoni’s
residence on January 20, 2018. The declaration of diligence
states that the process server attempted to serve Shekoni on
five previous occasions at his residence, but that Shekoni
was “unavailable.” The Clerk of the Superior Court rejected
the third request for entry of default because “need new
request and use all new dates,” the proof of service or
4
statement of damages was incomplete (“1B name [of]
defendant not provided”), and there was “no proof of mailing
of substitute service with date . . . , place of mailing, address”
of the statement of damages.
On April 11, 2018, Peters filed a fourth statement of
damages and request for entry of default. The proof of
service of the statement of damages executed by a registered
California process server indicates substituted service was
made on “Jane Doe,” a 30-year-old female co-occupant of
middle eastern ethnicity with black hair, approximately five
feet six inches in height and 140 pounds, at Shekoni’s
residence on January 20, 2018. The declaration of diligence
states that the process server attempted to serve Shekoni on
five previous occasions at his residence, but that Shekoni
was “unavailable.”
On December 7, 2018, Peters requested a court
judgment against Shekoni. The trial court denied the
request for default judgment without prejudice in a minute
order dated February 4, 2019, because Peters claimed
damages for two business entities, which, if distinct, would
have separate claims for damages.
On April 3, 2019, Peters again requested a court
judgment.
On August 15, 2019, the court entered default
judgment against Shekoni for $5,852,051.29 in damages and
costs. Copies of the notice of entry of judgment were mailed
to Shekoni at his residence.
5
Shekoni’s Motion to Set Aside Default Judgment
On October 18, 2019, Shekoni filed a motion to set
aside default judgment pursuant to section 473, subdivisions
(b) and (d), and section 473.5, and requesting leave to file an
answer in the matter. In support of the motion, Shekoni
filed declarations by himself; his wife, Mujidat Shekoni
(Mujidat); George Chukwudobe, who represented Shekoni in
connection with claims for personal injury and property
damage arising from the December 18, 2016 accident; and
Jeffrey Z. Liu, Shekoni’s attorney of record.
Shekoni declared that he was transporting Peters in
his vehicle on December 18, 2016, when Carolina Gomez ran
a red light and struck his vehicle. He hired Chukwudobe to
represent him for his claims arising out of the incident.
Shekoni made a claim to James River Insurance Company,
which was ultimately settled. Neither Chukwudobe nor
James River Insurance Company informed him that any
individual was making claims against him before he settled
the insurance claim. Shekoni was never served with the
complaint in the instant matter, and never received a copy
by mail. Between December 18, 2016, and August of 2019,
he did not receive any written notices or documents relating
to the instant case. He asked his wife if she had been served
with any documents or received mail relating to the case,
and she stated that she had not. On or around August 26,
2019, Shekoni received the Notice of Entry of Judgment by
mail and immediately contacted Chukwudobe, who
6
contacted James River Insurance Company to inquire as to
the nature of the case. On September 6, 2019, Shekoni
contacted Liu, his current attorney. Shekoni did not believe
that he acted negligently in any way in the accident.
Mujidat declared that her name is “Mujidat Shekoni”
and that she has never been referred to by any other alias or
name, including “Jane Shekoni.” She lives at the address
where substituted service was purportedly made, and has
lived there from at least 2017 until the date of her
declaration. Mujidat had never received any documents
relating to this case by personal delivery, personal service, or
by mail. Had she received such documents, she would have
given them to her husband.
Chukwudobe declared that he was retained by Shekoni
to represent him for his claims arising out of the incident.
Shekoni’s vehicle was insured by James River Insurance
Company. In the course of his representation of Shekoni,
Chukwudobe was in constant contact with James River
Insurance Company and was never informed that any claim
had been filed against Shekoni by Peters or any other party.
When Chukwudobe represented Shekoni, he instructed
Shekoni to bring him any paperwork, initiating
documentation, complaints, legal pleadings, and any other
documents that he received relating to the case. Prior to
August of 2019, Shekoni never brought him any paperwork
relating to the instant case. In August of 2019, Shekoni
contacted him and indicated that he received the Notice of
Entry of Judgment in this case from the court. Chukwudobe
7
asked Shekoni if he had been served with the summons and
other court documents relating to this case. Shekoni denied
any knowledge that the case existed, and stated that the
Notice of Entry of Judgment was the first document he had
received. Chukwudobe immediately contacted
representatives of the James River Insurance Company and
informed them that the lawsuit had been filed and default
judgment entered against Shekoni. On or about September
6, 2019, Chukwudobe was contacted by Liu, who indicated
that Shekoni had retained him to represent him in the
matter. Chukwudobe made Liu aware that prior to August
of 2019 he had never received any sort of initiating
document from the court or Shekoni regarding the lawsuit,
and Chukwudobe was not aware that it had been filed until
he received the Notice of Entry of Judgment.
Liu declared that Shekoni was never served with any
documents in this matter even after Liu made Peters’s
counsel aware that he was representing Shekoni on
September 6, 2019. On that date, Liu began trying to meet
and confer with Peters’s counsel in an attempt to reach a
stipulation to vacate the default. Peters’s counsel refused to
stipulate. Liu requested copies of the default judgment
requests and accompanying proofs of service from Peters’s
counsel on September 30, 2019, but had not received them
by the date of the declaration. Once Liu obtained the
documents, it became clear to him that many of the requests
for default were rejected by the court and therefore defective.
Moreover, the allegations of the complaint clearly indicated
8
that Gomez, who was never served, caused the traffic
incident, a fact that was corroborated by the Traffic Collision
Report.
Shekoni attached a proposed answer to the complaint,
in which he denied the allegations set forth in the complaint
and asserted affirmative defenses, as well as other
documentation in support of the motion.
In his memorandum of points and authorities, among
other legal arguments, Shekoni contended that where there
has been a complete failure of service of process, a resulting
judgment is void, and should be vacated pursuant to section
473, subdivision (d). Shekoni cited authority for the
proposition that such failure of service means a trial court
never obtains personal jurisdiction over a defendant,
violating fundamental due process.
Peters’s Opposition and Shekoni’s Reply
Peters opposed the motion, arguing that Shekoni was
not entitled to relief (1) under section 473, subdivision (b),
because he moved to set aside default more than six months
after entry of default; (2) under section 473, subdivision (d),
because the section pertains only to “void” judgments and
not “voidable” judgments—here service was valid and not
void; and (3) under section 473.5, because he failed to make a
showing under oath that his lack of actual notice in time to
defend the action was not caused by his avoidance of service
or inexcusable neglect, and because the methods used to
9
provide notice were reasonably calculated to accomplish it.
Peters also argued that Shekoni had not requested equitable
relief and was not entitled to it. The declaration of Peters’s
attorney, Sebastian Medvei, was attached, as well as the
proofs of service for the documents relating to this matter
(detailed ante). Peters attested to the actions of the process
server as described in the proofs of service, and declared that
no mail sent to Shekoni regarding the matter was ever
returned to him or to the process server.
Peters also filed objections to large portions of the
declarations and exhibits attached to Shekoni’s motion to set
aside the judgment.3
Shekoni filed a reply arguing that (1) the opposition
failed to show that service was proper; (2) Shekoni
demonstrated his lack of actual notice was not the result of
avoidance of service or inexcusable neglect; (3) Peters’s
purported “facts” regarding actual notice were unsupported
conjecture; and (4) section 473.5 and other equitable
considerations favored resolving the case on the merits.
Shekoni also responded to Peters’s objections.
3 The trial court overruled the majority of Peters’s
objections, including all objections pertaining to the
declarations of Shekoni, Mujidat, and Liu. He does not
challenge any part of the trial court’s ruling on the objections
on appeal.
10
The Trial Court Hearing and Ruling
Prior to the hearing, the court issued a written
tentative ruling, subject to hearing, granting Shekoni’s
motion to set aside the default judgment.4 Shekoni’s counsel
submitted to the court’s tentative ruling via email.
At the hearing on November 18, 2019, counsel for
Peters argued that the court was only empowered to set
aside a default judgment under section 473, subdivision (d)
where “there is invalid service that is apparent from the face
of the record.” Peters’s counsel further argued that this
standard precludes proving the invalidity of service by
extrinsic evidence. In support of this contention, counsel
recited language from Calvert v. Al Binali (2018) 29
Cal. App. 5th 954, at pages 960 through 961 (Calvert), that
“[a] judgment or order is said to be void on its face when the
invalidity is apparent upon an inspection of the judgment
roll. This does not hinge on evidence. A void judgment’s
invalidity appears on the face of the record.” Peters’s
counsel concluded that Shekoni’s motion must be denied
under section 473, subdivision (d) because the motion was
based on evidence in the form of declarations, rather than
solely on the judgment roll; nothing in the judgment roll
4 The tentative ruling is referred to by the court, but is
not contained in the record on appeal.
11
suggested service was invalid.5 The court disagreed with
counsel’s argument that Calvert stands for the proposition
that extrinsic evidence can never be considered in
determining whether a judgment is void under section 473,
subdivision (d). The court adopted its tentative order to
grant Shekoni’s motion to set aside the default judgment,
with changes to reflect the arguments made at the hearing.
Following the hearing, the court issued its written
order granting Shekoni’s motion to set aside the default
judgment. The court ruled that to the extent that Shekoni
sought to set aside the judgment under section 473,
subdivision (b), the motion was untimely, as Peters took
Shekoni’s default on April 19, 2018, and the motion was not
filed until October 18, 2019.6 Shekoni was also ineligible for
relief under section 473.5 because he did not include a
statement made under oath that his “lack of actual notice in
time to defend the action was not caused by his or her
5 As pertinent here, section 670, subdivision (a)
provides: “In superior courts the following papers . . . shall
constitute the judgment roll: [¶] . . . the summons, with the
affidavit or proof of service; the 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 . . . .”
6 Application for relief under section 473, subdivision
(b) “shall be made within a reasonable time, in no case
exceeding six months, after the judgment, dismissal, order,
or proceeding was taken.”
12
avoidance of service or inexcusable neglect” as required by
section 473.5, subdivision (b).
The court ruled that Shekoni was, however, eligible for
relief under section 473, subdivision (d), which allows a court
to set aside a void judgment if the defendant did not have
actual or constructive knowledge of the proceedings. The
court found that it had authority to consider extrinsic
evidence in ruling on the motion. The court ruled that
Mujidat’s declaration that she never received any documents
relating to the case constituted sufficient evidence to
establish that Shekoni did not have actual or constructive
knowledge of the action in time to file an answer.
Peters filed a timely notice of appeal.
DISCUSSION
On appeal, Peters contends that the trial court erred by
considering extrinsic evidence in support of Shekoni’s motion
to set aside the default judgment pursuant to section 473,
subdivision (d), and that, even considered, the evidence did
not support vacating a judgment based on substitute service.
We conclude that the trial court had authority to consider
extrinsic evidence and that, based on such evidence, the
court did not abuse its discretion in granting Shekoni’s
motion to set aside the judgment.
13
The Trial Court has Authority to Consider Extrinsic
Evidence Under Section 473, Subdivision (d)
Section 473, subdivision (d) provides in pertinent part
that “[t]he court may . . . on motion of either party after
notice to the other party, set aside any void judgment or
order.” The lynchpin of Peters’s argument on appeal is that
the only permissible way to obtain relief under section 473,
subdivision (d), is to show from the judgment-roll that the
judgment is void on its face, without reference to any
extrinsic evidence. We disagree.
Where a party attacks a judgment as void in the same
action in which the judgment was rendered, there is no bar
to using extrinsic evidence: “[a] motion to vacate a void
judgment is a direct attack. [Citations.] ‘[O]n direct attack,
lack of jurisdiction may be shown by extrinsic evidence, i.e.,
evidence outside the judgment roll.’ [Citation.]” (Strathvale
Holdings v. E.B.H. (2005) 126 Cal. App. 4th 1241, 1249
(Strathvale Holdings).) “To establish personal jurisdiction, it
is essential to comply with the statutory procedures for
service of process. [Citation.] Accordingly, ‘“a default
judgment entered against a defendant who was not served
with a summons in the manner prescribed by statute is
void.”’ [Citation.] Whether the lack of jurisdiction appears
on the face of the judgment roll, or is shown by extrinsic
evidence for a judgment that appears valid on its face, ‘in
either case the judgment is for all purposes a nullity—past,
present and future.’ [Citation.]” (OC Interior Services, LLC
14
v. Nationstar Mortgage, LLC (2017) 7 Cal. App. 5th 1318,
1330–1331.)
Peters’s opening brief on appeal relies heavily on
Trackman v. Kenney (2010) 187 Cal. App. 4th 175
(Trackman), as purported support for the proposition that
extrinsic evidence is never properly considered in
determining whether a judgment is void under section 473,
subdivision (d). But Trackman supports precisely the
opposite proposition: section 473, subdivision (d), may
provide relief both when the judgment is void on its face, and
when it is facially valid, but extrinsic evidence establishes
that the judgment is void. (Id. at pp. 179–181.) The
Trackman court explained that when a judgment is facially
void, it is subject to both direct and collateral attack, and
may be challenged “at any time, provided the party acts with
diligence.” (Id. at p. 181.) When a judgment is facially valid
but void in fact, a party may also obtain relief from default
under section 473, subdivision (d), by reference to extrinsic
evidence, under certain circumstances that we find present
here.. (Id. at p. 180.)
In this case, reliance on extrinsic evidence was
appropriate because Shekoni made a direct attack on the
judgment, within the time limitations set forth in section
473.5, subdivision (a),7 and within a reasonable time after
7 Section 473.5, subdivision (a) sets forth the time
limitation for bringing such action as follows: “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
15
service of the notice of entry of judgment.8 After the court
entered default judgment on August 15, 2019, and Shekoni
received the Notice of Entry of Judgment on or around
August 26, 2019, he filed the motion to set aside in the same
action on October 18, 2019. In ruling on this direct attack,
filed within the relevant time period, the trial court
appropriately considered the extrinsic evidence attached to
the motion.9
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.”
8 Neither of the cases Peters principally relies on—
Trackman and Calvert—concern extrinsic evidence, because
in each case defendant sought relief after more than two
years had elapsed since judgment, and was therefore
confined to the argument that service of process was invalid
on its face.
9 In his reply brief, Peters contends for the first time
that where service of process is proper on its face, but
otherwise invalid, the judgment is voidable, rather than
void, and not susceptible to relief under section 473,
subdivision (d). Peters cites no authority for this belated
argument, and it is contrary to the authorities discussed
above. (See, e.g., Strathvale Holdings, supra, 126
Cal.App.4th at p. 1249.)
16
The Trial Court Did Not Abuse Its Discretion by
Granting the Motion to Set Aside the Judgment
Standard of Review
“Section 473, subdivision (d) provides, ‘The court may,
upon motion of the injured party, or its own motion, . . . set
aside any void judgment or order.’ The inclusion of the word
‘may’ means that even if the trial court determines the order
or judgment was void, it still retains discretion to set the
order aside or allow it to stand. [Citations.] 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. Evaluating an order or judgment as void is a question
of law, reviewed de novo. [Citation.] . . . [W]e review the
trial court’s decision to set aside a dismissal for abuse of
discretion.” (Nixon Peabody LLP v. Superior Court (2014)
230 Cal. App. 4th 818, 822.)
Where the trial court’s ruling includes consideration of
affidavits and evidence beyond the judgment roll, we defer to
the factual determinations made by the trial court when the
evidence is in conflict. (Ramos v. Homeward Residential,
Inc. (2014) 223 Cal. App. 4th 1434, 1440–1441 (Ramos).)
“When a defendant challenges the court’s personal
jurisdiction, the plaintiff has the initial burden of
‘demonstrating facts justifying the exercise of jurisdiction.’
17
[Citation.] ‘When there is conflicting evidence, the trial
court’s factual determinations are not disturbed on appeal if
supported by substantial evidence.’ [Citation.]” (Strathvale
Holdings, supra, 126 Cal.App.4th at p. 1250.)
Analysis
In this case, Peters purported to have made substituted
service of the summons and complaint on Mujidat, as
demonstrated by the proof of service of the summons and
complaint that were filed with the court.10 The trial court
found that Shekoni had neither actual nor constructive
notice of the proceedings, based on the declarations of
Shekoni and Mujidat that neither of them had been served
with, or had otherwise received, any documents relating to
this matter prior to August of 2019, which it credited as true.
We defer to the trial court’s evaluation of that evidence.
10 Substituted service is permitted under section
415.20, subdivision (b): “If a copy of the summons and
complaint cannot with reasonable diligence be personally
delivered to the person to be served, . . . a summons may be
served by leaving a copy of the summons and complaint at
the person’s dwelling house, usual place of abode, . . . or
usual mailing address other than a United States Postal
Service post office box, in the presence of a competent
member of the household . . . at least 18 years of age, who
shall be informed of the contents thereof, and by thereafter
mailing a copy of the summons and of the complaint by first-
class mail, postage prepaid to the person to be served at the
place where a copy of the summons and complaint were left.”
18
(Ramos, supra, 223 Cal.App.4th at pp. 1440–1441.)
Although Peters presented conflicting evidence in the form of
facially sufficient proofs of service, the affidavits of Shekoni
and his wife refuting the validity of those documents
constituted substantial evidence that Shekoni was not
properly served, either personally or by substituted service.
We will therefore not disturb the trial court’s determination
that it lacked personal jurisdiction over Shekoni.
(Strathvale Holdings, supra, 126 Cal.App.4th at p. 1250.) In
light of the foregoing, we conclude that the judgment is void.
(Lovato v. Santa Fe Internat. Corp. (1984) 151 Cal. App. 3d
549, 553 [“The default judgment is void under the due
process clause of the federal constitution unless [the
defendant] had actual or constructive notice of the
[proceedings]”].) Accordingly, we hold that the trial court did
not abuse its discretion in granting the motion to set aside
the judgment.
19
DISPOSITION
The order setting aside default judgment is affirmed.
Defendant and respondent Yusuf Shekoni is awarded his
costs on appeal.
MOOR, J.
We concur:
BAKER, Acting P. J.
KIM, J.
20