e ® MICHELLE L. RICE, SBN 235189 ORIGINAL KORY & RICE, LLP 9300 Wilshire Blvd., Suite 200 Beverly Hills, California 90212 ce ior GED so ence Gallia Telephone: (310) 285-1630 Facsimile: (310) 278-7641 JAN 0.6 2014 JEFFREY KORN, SBN 150978 ‘Shem R. Ce uve Otticer/Clerk 714 West Olympié Boulevard, Suite 450 oe on Los Angeles, California 90015 Telephone: (310) 430-5681 Email: jeffkornlaw@live.com Attorneys for Plaintiffs LEONARD N, COHEN and LEONARD COHEN INVESTMENTS, LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES ~CENTRAL DISTRICT CASE NO.: BC338322 issigned to the Hon, Robert L. Hess; rept. 24 LEONARD NORMAN COHEN, an individual; LEONARD COHEN INVESTMENTS, LLC, a Delaware Limited Liability Company, Plaintiff, LAINTIFFS’ POINTS AND AUTHORITIES v, KELLEY LYNCH, an individual; RICHARD A. WESTIN, an individual; DOES 1 through 50, inclusive, ‘OMPLAINT; DECLARATION OF SCOTT DELMAN; DECLARATION OF IICHELLE RICE; DECLARATION OF OBERT KORY; DECLARATION OF EONARD COHEN; AND ATTACHED EXHIBITS Defendants. jearing Date: January 17, 2014 ‘ime: 8:30 A.M, ept.: 24 (Complaint filed: August 15, 2005ote ay eto) 10 M1 12 13 14 15 16 7 18 19 20 2 2 23 24 25 26 27 28 IL ML. Iv. e e TABLE OF CONTENTS INTRODUCTION AND SUMMARY OF ARGUMENT... THE DEFAULT JUDGMENT IS NOT VOID AND SHOULD NOT BE DISTURBED. coettenseeeessseeean A. The Substituted Service on Lynch Fully Complied With the Statutory Requirements Pursuant to California Code of Civil Procedure §415.20(b) and §417.10(@)...... 1. Statutory Requirements For Substituted Service Under California Code of Civil Procedure §415.20(b).....-+1s:s++ ed 2, The Registered Process Server Exercised Reasonable Diligence to Personally Serve Lynch before Resorting To Substituted Service under CCP §415.20(b). ceed 3. The Proof of Service Is Not Void on Its Face. 4, Substantial Compliance with the Statutory Requirements, Coupled With Actual Notice Is Touchstone of Valid Service.........+..4+. 7 5. There is Ample Evidence That Lynch Had Actual Notice of ‘The Summons and Complaint, Confirming That Service Was Effectuated on Lynch. LYNCH'’S MOTION IS UNTIMELY FOR STATUTORY RELIEF FROM DEFAULT JUDGMENT. A. Plaintiffs’ Evidence Shows Lynch Had Notice of Plaintiffs’ Request for Entry of Default in December 2005 and Request to Enter Default Judgment in January 2006 and April 2006.. eee B. Lynch Admits to Knowledge of the Default in March 2006 and Plaintifis’ Evidence Shows Lynch Had Acknowledged Receipt Of Default Judgment in May 2008... seveneeeeeenees C. Lynch Is Not Entitled to Statutory Relief Under Either CCP §473 or §473.5......13 LYNCH IS GUILTY OF INEXCUSABLE NEGLECT.... 14 A. Courts Deny Equitable Relief When Defaulting Party Has Shown Inexcusable Neglect........-ccccsssssesseesimsvsssssseetessssssssseseesssssssssssal B. Lynch's Deliberate Inaction to Repeated Actual Notice Constitutes Inexcusable Neglect Warranting Denial of Equitable Relief...........-++---0e0015 i Plaintiffs’ Opposition to Defendant’s Motion to Vacate and/or Modify Default Judgment Entered May 15, 2006aan ewn 10 cre 12 13 14 15 16 17 18 19 20 a 2 23 24 25 26 27 28 V1. Vu. VI. LYNCH HAS FAILED TO PROVE EXTRINSIC FRAUD OR EXTRINSIC MISTAKE. .. A. Lynch Has Failed To Produce Evidence of Extrinsic Fraud to Support Her Assertion That Service Was Fraudulent............-+s0:+-17 B. Lynch's Unsubstantiated Allegations of “Tax Fraud” Do Not Constitute Extrinsic Fraud Meriting Equitable Relief From The Judgment. 22 C. Lynch Also Fails to Show Extrinsic Mistake as Grounds For Equitable Relief........... 23 LYNCH HAS FAILED TO ESTABLISH THE ESSENTIAL ELEMENTS OF A CLAIM FOR EQUITABLE RELIEP.......--sccccsssssssesssees vevennedS A. Lynch Has Failed to Present a Meritorious Case... B. Lynch Has Failed to Present a Satisfactory Excuse for Not Presenting a Defense To The Original Action..........00.+-++ bed C. Lynch Has Failed to Prove Diligence. 27 LYNCH'’S MOTIONS TO QUASH AND TO DISMISS UNDER CODE CIV. PROC. §§ 583.210 AND 583.250 SHOULD BE DENIED........... CONCLUSION........-+000 28 ii Plaintiffs! Opposition to Defendant's Motion to Vacate and/or Modify Default Judgment Entered May 15, 2006Roe) ee 10 ar 12 13 14 15 16 17 18 19 20 2 ho 26 27 28 TABLE OF AUTHORITIES California State Cases ge Number(s) Aheroni v. Maxwell, 205 Cal. App. 3d 284 (Cal. Ct. App. 2" 1988)... sevssssed 5, 17 Bein v, Brechtel-Jochim Group, Inc., 6 Cal. App. 4" 1387 (Cal. Ct. App. 4" 1992). 5.6.7.8) County of San Diego v. Gorham, 186 Cal, App. 4" 1215 (Cal. Ct. App. 4" 2010)... 9, 21, 22, 28 Cruz v. Fagor America, Inc., 146 Cal. App. 4" 488 (Cal. Ct. App. 4" 2007).....cscessescesseseesteee 14 Davis v. Thayer, 113 Cal. App. 34 892 (Cal. Ct. App. 2"! 1980)... 14, 15, 16 Ellard v. Conway, 94 Cal. App. 4" 540 (Cal. Ct. App. 4" 2001), sesseeeeen Ts 8 Espindola v. Nunez, 199 Cal. App. 3d 1389 (Cal. Ct. App. 4" 1988). 5,6,7 Gibble v. Car-Lene Research, Inc., 67 Cal. App. 4" 295 (Cal. Ct. App. 1" 1998). 7,17, 25 Hammell v. Britton, 19 Cal. 2d 72 (1941)....cescecsecseestesresrsertestesesseeneeaneaneen senceeeeeseee dD, Hearn v. Howard, 177 Cal. App. 4" 1193 (Cal. Ct. App. 2" 2009)...... ee oily 2d In Re Marriage of Park, 27 Cal. 34 337 (1980)......sese000000 Khourie v. Sabek, 220 Cal. App. 3d 1009 (Cal. Ct. App. 1* 1990)... Korea Exchange Bank v. Yang, 200 Cal. App. 3d 1471 (Cal. Ct. App. 2" 1988).. 5,9 Lee v. An, 168 Cal. App. 4" 558 (Cal. Ct. App. 2" 2008). iii Plaintiffs" Opposition to Defendant's Motion to Vacate and/or Modify Default Judgment Entered May 15, 2006ey el tl a 10 u 12 13 14 15 16 17 18 19 20 2 2 23 24 25 26 27 28 TABLE OF AUTHORITIES California State Cases ‘Manson, Iver & York v. Black, 176 Cal. App. 4" 36 (Cal. Ct. App. 5" 2009)... MoCreadie v. Arques, 248 Cal. App. 2d 39 (Cal. Ct. App. 1*' 1967). 25,27 Moghaddam v. Bone, 142 Cal. App. 4" 283 (Cal. Ct: App. 4" 2006)... .16, 17, 23, 25 Palm Property Investments, LLC v. Yadegar, 194 Cal. App.4™ 1419 (Cal. Ct. App. 4 2011).......00.6+ AT Pasadena Medi-Center Assoc. v. Superior Court, 9 Cal. 3d 773 (1973)... aeeeees TD Rodriguez v. Henard, 174 Cal. App. 4"" 529 (Cal. Ct. App. 5 2009). lg; Stafford v. Mach, 64 Cal. App. 4" 1174 (Cal. Ct. App. 1* 1998) 5,8, 21, 22, 24 Stiles v. Wallis, 147 Cal, App. 3d 1143 (Cal. Ct. App. 2" 1983) a 24, 25,27 Trackman v, Kenney, 187 Cal. App. 4"" 175 (Cal. Ct. App. 3" 2010)... 6,7, 14, 16, 21, 22 Westphal v, Westphal, 20 Cal. 2d 393 (1942)... 03 Wilson v. Wilson, 55 Cal. App. 2d 421 (Cal. Ct. App. 1* 1942). seceeon DS United States t Courts, California J&J Sports Productions, Inc. v. Barksdale, 2012 WL 1353903, 2012 U.S. Dist. LEXIS $2583 (E.D. Cal. 2012).....-..0s::018 Saxon Mortg, Servs., Inc. v. Hillery, 2008 WL 5170180, 2008 U.S. Dist. LEXIS 100056 (N.D. Cal. 2008) Susott v. Susott. 2012 WL 1213762, 2012 U.S. Dist. LEXIS 51012 (N.D. Cal.2012)... 9 iv Plaintiffs? Opposition to Defendant's Motion to Vacate and/or Modify Default Judgment Entered May 15, 20061 TABLE OF AUTHORITIES 2 || Statutes Page Number(s) 3 || california Code of Civil Procedure 4 §415.20..... 5,9 5 6 §415.20(). sl, 3, 4,5, 7,95 18 7 §417.10(8).. 4,5,6 8 §473 seonedy 13, 17,24 9 §473(b) : ees eed 13014027 ay S47) ed my $473.5, sesceettsneeteeeeeress secsssedy 13, 14,27 12 §583.210... 3,28 13 §583.250... 3,28 14 15 §587. ssseseesssstenssssetesnsstensneseeensersessnsetensnsaneesns 11,12 16 || California Evidence Code 17 18 19 20 2 2 23 24 D 25 v Plaintiffs’ Opposition to Defendant's Motion to Vacate and/or Modify Default Judgment Entered May 15, 200610 u 12 13 14 15, 16 7 18 19 20 a 26 27 28 TO THE COURT AND DEFENDANT AND MOVING PARTY IN PRO PER: Plaintiffs Leonard Norman Cohen and Leonard Cohen Investments, LLC hereby oppose Defendant Kelley Lynch’s Motion to Vacate and/or Modify Default Judgment entered May 15, 2006. The opposition is based on the attached Points and Authorities, the Declaration of Scott Edelman, the Declaration of Michelle Rice, the Declaration of Leonard Cohen, and the Declaration of Robert Kory, the court file in this matter, and upon such evidence as may be introduced at the hearing. MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION AND SUMMARY OF ARGUMENT Plaintiff Leonard Cohen is a successful singer songwriter. In late 2004, he learned that Kelley Lynch, his personal manager for over 16 years, had misappropriated his entire retirement savings, an amount in excess of $5 million. Cohen filed a complaint on August 15, 2005 alleging seven causes of action against Lynch for fraud, conversion, breach of contract, breach(es) of fiduciary duty, negligence, injunctive relief, imposition of constructive trust and an accounting. (On August 24, 2005, Lynch was served the summons and complaint by substituted service, pursuant to Code of Civ. Proc. §415.20(b). A copy of the summons and complaint was mailed to Lynch on the same day. Service was deemed complete 10 days later, on September 3, 2005. (§415.20(b)). Lynch did not answer Cohen’s complaint. When Lynch failed to answer or otherwise appear in the case, Cohen first filed a Request to Enter a Default against Lynch on November 22, 2005. Plaintiffs served Lynch by mail a request for entry of default on December 5, 2005, and default was entered against Lynch on that day. Following a default hearing on April 28, 2006, of which Lynch had been given advanced email notice by Cohen’s attorneys yet refused to attend, the Court entered a default judgment on May 15, 2006 for $5 million plus interest (the “Default Judgment”) Lynch filed a Motion to Vacate and/or Modify the Default Judgment on August 9, 2013, six days shy of eight years after the original action was filed and over seven years after the entry of the Default Judgment. (“Motion”). Lynch's Motion was supported by two declarations: one from her and one from her son, John Rutger Penick. Lynch supplemented her Motion with a filing le Plaintiffs’ Opposition to Defendant's Motion to Vacate and/or Modify Default Judgment Entered May 15, 2006Royce) ew ao 10 M1 12 13, 14 15 16 a7 18 19 20 2 22 23 24 25 26 27 28 on December 24, 2013, adding a supplemental declaration from Lynch and one from an acquaintance, who is on information and belief, Lynch’s current housemate, Paulette Brandt. (“Supplement”). The gist of Lynch’s claims to equitable relief in her Motion and Supplement are that she was not served the summons and complaint, that she had no notice of the default being taken against her, and that she was not served the Default Judgment. With regard to the alleged failure of service, Lynch advances two arguments. First, she claims that the Proof of Service of summons and complaint on Lynch is facially invalid because the process server failed to give the true legal name of the party served, thereby making the judgment void on its face without having to resort to evidence beyond the record. Second, Lynch claims that the purportedly false Proof of Service constitutes “extrinsic fraud”, which voids the Default Judgment. To support her claim of “extrinsic fraud”, Lynch offers only testimonial evidence contained in the declarations of Lynch, her son and Paulette Brandt. In response to Lynch's claims regarding lack of service of the summons and complaint, Plaintiffs offer evidence in the supporting declaration of Scott Edelman, the original attorney who filed Cohen’s complaint against Lynch and Westin, Edelman’s declaration, along with the attached exhibits, demonstrat 1) valid service of the summons and complaint was effectuated ‘on Lynch as evidenced by her email communication to Edelman within hours of the service; (2) Lynch was given notice via email by Plaintiffs’ attorneys of court hearings, including the initial Case Management Conference in Case No, BC 338322, and hearings on the default in January and April of 2006; and (3) in addition to being mailed documents to her Mandeville Canyon Road residence, Lynch was emailed by Plaintiffs’ attorneys electronic PDF copies of filed court documents, receipt of which were confirmed through Ms. Lynch’s emailed replies. In response to Lynch’s other claims, the declaration of Michelle Rice demonstrates that, Lynch had and read a copy of the Default Judgment no later than May 2008. Robert Kory’s declaration rebuts Lynch’s allegations that Cohen committed tax fraud, that key legal entities owned by Cohen were formed for an improper purpose, and that the Court improperly imposed a constructive trust on those entities for Cohen’s benefit through the Default Judgment. Leonard -2- Plaintiffs" Opposition to Defendant's Motion to Vacate and/or Modify Default Judgment Entered May 15, 2006sw nw eC eran 10 u 12 13 14 15 16 17 18 19 20 a 24 25 26 27 28 Cohen’s declaration describes the prejudice to Cohen if the Default Judgment were to be vacated at this late date. Lynch now belatedly moves in propria persona to seek to invoke the Court’s inherent equitable powers to: (i) vacate the default judgment; (ii) quash the service of the summons and complaint; (iii) obtain mandatory dismissal of the complaint under Code Civ. Proc. Sections §583.210 and §583.250 for failure to serve the summons and complaint within three years of filing of the action; (iv) or in the alternative to dismissal, be granted leave to file an answer to the complaint. Lynch’s requested relief should be denied in its entirety because: (i) the substituted service of the summons and complaint on Lynch at her residence was valid and fully complied with the statutory requirements under Code of Civ. Proc.§415.20(b), and therefore the Default Judgment is not void for lack of service; (ii) the Proof of Service of summons on Lynch is facially valid and not defective as Lynch claims because the name of the person given the summons was stated as “Jane Doe, co-occupant”; (iii) Lynch’s motion to quash the service of the summons and complaint is untimely, procedurally defective and should be denied because the evidence supports that Lynch was properly served and there is no evidence supporting the underlying assertion that service was invalid or fraudulent; (jv) Lynch’s Motion to Dismiss under Code of Civ. Proc. Sections §583.210 and §583.250 should be denied because the summons and complaint were validly served on Lynch and both service and the return of summons were made within three years of commencing the action; (v) Lynch’s motion to vacate the default is untimely for statutory relief under Code Civ. Proc. §473 and §473.5, (vi) Lynch has not met her burden of producing ‘competent objective evidence of extrinsic fraud to overcome Plaintiffs’ prima facie case of valid service; (vii) Lynch has not provided evidence of excusable neglect to entitle her to equitable relief under the theory of extrinsic mistake; and finally (viii) Lynch has failed to establish essential elements of a claim for equitable relief. W u aoe Plaintiffs’ Opposition to Defendant’s Motion to Vacate and/or Modify Default Judgment Entered May 15, 2006Core) a ato) 10 1 12 13, 14 15 16 17 18 19 20 2 2 23 24 25 26 27 28 Il. THE DEFAULT JUDGMENT IS NOT VOID AND SHOULD NOT BE DISTURBED A. The Substituted Service on Lynch Fully Complied With the Statutory Requirements Pursuant to California Code of Civil Procedure §415.20(b) and §41 On August 24, 2005, Lynch was served by substituted service pursuant to §415.20 (b). ‘The substituted service of the summons and complaint on Lynch at her residence of eight years in Los Angeles fully complied with all of the statutory requirements for substituted service under section §415.20(b). The California registered process server from First Legal Support Services, Leon Moore, filed a Declaration of Diligence stating that he first attempted personal service on Lynch at her Mandeville Canyon residence on six separate occasions during the period from August 17-23, 2005 (Edelman Decl. (6, Exh. A, Declaration of Diligence). On the seventh attempt, August 24", at 9:00AM, he noted: “Subject not in, Subserved on “Jane Doe” - White Female, $°7”, 135 Ibs, blond hair, black eyes, co-occupant.” Id, On that same day, First Legal Support Services mailed, via first class mail, postage prepaid, a true copy of the summons and complaint (as well as other associated court documents) addressed to Lynch at the Mandeville Canyon address. (Id, Proof of Service By Mail). Service was deemed completed 10 days later, on September 3, 2005. (§415.20(b)). Lynch does not deny receiving the mailed summons and complaint. Pursuant to §417.10(a), the Proof of Service also contained an affidavit showing the time, place and manner of service, as well as the name of the person to whom a copy of the summons and complaint were delivered. (Id., Declaration of Diligence). The Proof of Service was filed with the Court on August 25, 2005. (Edelman Decl. 47). 1. Statutory Requirements For Substituted Service Under California Code of Civil Procedure §415.20(b) ‘The Code of Civil Procedure provides a means of effective service of process 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 or usual place of abode in the presence of a person apparently in charge, followed by mailing the documents to the same address. Code Civ. Proc. §415.20(b). 4. Plaintiffs’ Opposition to Defendant's Motion to Vacate and/or Modify Default Judgment Entered May 15, 2006as wn 10 i 12 13 14 15 16 17 18 19 20 a > 26 2 p27 bog Further, §417.10(a) requires a requisite proof of service with affidavit showing the time, place and manner of service, as well as the name of the person to whom a copy of the summons and complaint were delivered. Id. §417.10(a). California appellate decisions construing the ‘reasonable diligence’ requirement under section 415.20 have found that “ordinarily, two or three attempts at personal service at a proper place should fully satisfy the requirement of reasonable diligence and allow substituted service to be made.” Bein v. Brechtel-Jochim Group, Ine., 6 Cal. App. 4" 1387, 1391 (Cal. Ct. App. 4" 1992)(upholding as valid substituted service on a gate guard and on a “Linda Doe” at the Jochim’s residence after three attempts); Espindola v. Nunez, 199 Cal. App. 34 1389, 1392 (Cal. Ct. App. 4 1988)(finding that reasonable diligence requirement for substituted service under Code Civ. Proc, §415.20(b) met after three attempts before substituted service on wife since the process server's actions were calculated to, and did, result in actual notice to husband.) Further, ifthe form of substituted service is “reasonably calculated to give an interested party actual notice of the proceedings and an opportunity to be heard...the traditional notions of, fair play and substantial justice implicit in due process are satisfied.” Stafford v. Mach, 64 Cal. App. 4" 1174, 1183 (Cal. Ct. App. 1* 1998). Substituted service by leaving a copy of the summons and complaint at the person’s usual place of abode pursuant to Code Civ. Proc. §415.20 (b), satisfies the constitutional requirements of service reasonably calculated to give an interested party actual notice of the proceedings and an opportunity to be heard. Korea Exchange Bank v. Yang, 200 Cal. App. 3d 1471, 1474 (Cal. Ct. App. 2° 1988). 2. The Registered Process Server Exercised Reasonable Di Lynch Before Resorting To Substituted Service Under CCP §415.20(b) Here, the registered process server attempted six times to serve Lynch personally at her home. (Edelman Decl. $6, Exh. A, Declaration of Diligence.) On the seventh attempt, a “Jane Doe” was left a copy of the summons and complaint on August 24, 2005. Id. Under these circumstances, reasonable diligence was shown. “Ordinarily....two or three attempts at personal ce Plaintiffs’ Opposition to Defendant's Motion to Vacate and/or Modify Default Judgment Entered May 15, 2006Cc 3e ran een 10 u 12 13 14 15 16 17 18 19 20 a 22 23 24 25 26 27 28 service at a proper place should fully satisfy the requirement of reasonable diligence and allow substituted service to be made.” Espindola, 199 Cal. App. 3d at 1392. Furthermore, because it ‘was Lynch’ residence, this method of service was reasonably calculated to provide Lynch with actual notice. 3. The Proof of Service Is Not Void on Its Face Lynch argues that the Default Judgment is void due to a defective proof of service, the invalidity of which makes the judgment void on its face and, as such, subject to collateral attack at any time, (Supp. pp. 15-16) Whether a proof of service is void does not depend on evidence outside the face of the record. Trackman v. Kenney, 187 Cal. App. 4" 175, 182 (Cal. Ct. App. 3 2010). Whether a judgment is void due to improper service is a question of law. Id, Lynch argues that the Proof of Service is void on its face, because the name of the person given the summons was stated as “Jane Doe, co-occupant.” Id. Lynch also argues that the Proof’ of Service is defective because the process server did not provide the name of Lynch’s neighbor in his Declaration of Diligence. (Supp. p. 16). Both of Lynch’s claimed defects have no merit as the Proof of Service is facially valid. The process server's use of the fictitious name “Jane Doe, co-occupant” complies with the requirements of §417.10(a) and does not make the Proof of Service facially void. Trackman, 187 Cal. App. 4th at 184 (finding that Code Civ. Proc., § 417.10, subd. (a), does not state that the "name" in the proof of service must be the true legal name of the person.) The statute does not require the name of Lynch’s neighbor because the neighbor was referenced in the Declaration of Diligence as someone the process server spoke with on August 19, 2005 when he attempted personal service on Lynch. (Edelman Decl. 6, Exh. A, Decl. of Diligence). All that is required under the statute is the name of the person “to whom a copy of the summons and complaint were delivered.” See Section $417.10(a). Therefore the neighbor's name was not required as Lynch argues. Further, minor, harmless deficiencies will not be allowed to defeat service. Bein, 6 Cal App. 4" at 1394. Lynch argues that “it seems to defy logic that an individual would answer the door, confirm that they were a ‘co-occupant’, and then fail to provide their name.” (Supp. p. 15.) oo Plaintiffs’ Opposition to Defendant's Motion to Vacate and/or Modify Default Judgment Entered May 15, 2006ewan eon 10 Ww 12 13 14 15 16 17 18 19 20 a 22 23 24 25 26 27 28 Contrary to Lynch’s argument that it “defies logic” that someone who answered the door would fail to provide his or her name, appellate courts and leaned treatises have recognized that. “persons in apparent charge of businesses and residences often refuse to give their true legal names. For this reason, it is an accepted practice to name such a person as “John Doe,’ or by a similar fictitious name or by a description.” Trackman, 187 Cal. App. 4" at 182. The Trackman court found that “leaving papers with an apparent coresident...is a method of service reasonably calculated to achieve actual service, and is therefore facially valid, whether or not actual service is accomplished on the facts of a given case.” Trackman, 187 Cal. App. 4" at 184. (emphasis in the original). 4, Substantial Compliance With the Statutory Requirements, Coupled With Actual Notice Is Touchstone of Valid Service Code of Civ. Proc. § 415.20 (b) was enacted in 1969 as part of a legislative package to ‘update California law on jurisdiction and service of process. Espindola, 199 Cal. App. 3d at 1391 Before the 1969 legislation, substituted service on an individual defendant was not authorized in California. Id. In Pasadena Medi-Center Associates v. Superior Court, the California Supreme Court found that “[a]lthough some decisions under pre-1969 statutes required strict and exact compliance with the statutory requirements....the provisions of the new law, according to its draftsmen...are to be ‘liberally construed to effectuate service and uphold the jurisdiction of the court if actual notice has been received by the defendant’ Pasadena Medi-Center Assoc. v. Superior Court, 9 Cal. 3d 773, 778 (1973)(emphasis supplied); Gibble v. Car-Lene Research, Inc., 67 Cal. App. 4" 295, 313 (Cal. Ct. App. 1* 1998). The California Supreme Court’s admonition to construe the process statutes liberally extends to substituted service as well as to personal service. Espindola, 199 Cal. App. 3d at 1391; Bein, 6 Cal. App. 4" at 1392; Ellard v. Conway, 94 Cal. App. 4"" 540, 544 (Cal. Ct. App. 4 2001). In Espindola v, Nunez, the appellate court upheld substituted service under §415.20(b) on defendant’s wife at his home because such service was calculated to, and in fact, did, give actual notice to the defendant husband. Espindola, 199 Cal. App. 3d at 1393. Te Plaintiffs’ Opposition to Defendant's Motion to Vacate and/or Modify Default Judgment Entered May 15, 2006Sewer anee u 12 13 14 15 16 7 18 19 20 a @ 24 25 Likewise, in Ellard v. Conway, finding that the defendants had actual notice of the lawsuit in time to defend it, the court held substituted service was valid on the individual defendants when the summons and complaint were left with the manager of the Postal Annex where the Conways received their mail. Ellard, 94 Cal. App. 4" at 545. The Ellard court found that the Postal Annex manager was a person “apparently in charge” of their post office box. Id. On facts of service very similar to this case, the appellate court in Stafford v. Mach upheld substituted service on “John Doe, co-occupant”, (Asian M, 576”, 150 Ibs., 30-40 YR, BLK Hair.)”, Stafford, 64 Cal. App. 4" at 1178, On the process server's sixth attempt to serve Mach at his residence, Mach answered the door but did not reveal his identity, Id Since Mach did not give the process server his name, he did not think that he had been served, yet forwarded the summons and complaint to Allstate, his insurer. Id, at 1183. Allstate relied on Mach’s mistaken belief that he wasn’t validly served and did not answer the complaint, Id at 1181. The appeals court in reversing the trial court’s order setting aside the default emphasized the “necessity of exercising reasonable diligence in both secking to prevent or vacate a default despite a belief that service was not properly effectuated.” Id. at 1186. In Heam v, Howard, substituted service was made on the clerk of a private post office box store, identified as “John Doe’ (Caucasian male; 5°S”, 40°s, 170 Ibs; wearing baseball cap.)” Heam xy. Howard, 177 Cal. App 4” 1193, 1198 (Cal. Ct. App. 22009). ‘The Hearn court held that the defendant's mistaken belief that she had not been properly served did not warrant vacating the default judgment under §473(b) for mistake, inadvertence, surprise or excusable neglect. Substituted service on a “Linda Doe” was also upheld in Bein after three previous attempts by Bein to personally serve the Jochims at their residence. Bein, 6 Cal. App. 4" at 1390. “Linda Doe” was served when she emerged from the residence. “As she was handed the papers, she ran back into the house and turned out the lights.” Id. Substituted service was also upheld on the gate guard at the Brechtel’s residence, who when served, threw the papers on the ground. Id. at 1391. Because appellants authorized the guard to control access to them and their residence, the court held that the gate guard “must be considered a competent member of the household and the person apparently in charge.” Id. at 1393. -8- Plaintiffs’ Opposition to Defendant's Motion to Vacate and/or Modify Default Judgment Entered May 15, 2006ee aan en 10 un 12 13 14 15 16 a7 18 19 20 2 2 23 24 25 26 27 28 In Susott v. Susott, the U.S. District Court for the Northern District of California held that substituted service on defendant’s houseguest was valid under §415.20 because the houseguest ‘was “apparently in charge of the household, as he was the only person to answer the door on the process server's seventh attempt to find someone home.” Susott v. Susott, 2012 WL 1213762, *3, 2012 US. Dist, LEXIS 51012, *8 (N.D. Cal. 2012). The district court found that the houseguest was not only allowed to stay in defendant’s home, but was also given the authority to control access to it by others that he was a competent person who could be considered either a “member of the household or a person apparently in charge” sufficient to accept service under Code Civ. Proc. 415.20. Id. Ignoring the California Supreme Court’s admonition in Pasadena Medi-Center that the service statutes should be liberally construed to effectuate service and uphold the jurisdiction of the court if actual notice has been received by the defendant, Lynch cites in her Motion and Supplement case authority to support her argument that strict compliance with the service statutes is required. (Motion, p. 11; Supp. p. 20). All of the cases cited are inapposite. Lynch’s cases are readily distinguishable because: (1) they were decided before the legislative revision to the service statutes in 1969 (Waller v. Weston (1899); Bank of America Nat'l Trust & Sav. Assoc. v. Carr (1956); Sternbeck v. Buck (1957)); (2) they involve service by publication (Eagle Electric Mfg. Co. v. Keener; David B. v. Superior Court) or (3) they involve either a complete failure to comply with the service statutes (Renoir v. Redstar Corp ; Schering Corp. v. Superior Court; County of San Diego v. Gorham) or lack substantial compliance (Zirbes v. Stratton; Summers v. McClanahan), Service by publication is substantially less likely to give actual notice. Korea Exchange Bank, 200 Cal. App. 3¢ at 1474 The one case Lynch cites involving substituted service on an individual under §415.20(b), Zixbes v. Stratton, is distinguishable because there substituted service was found improper when the plaintiff failed to serve defendant at her dwelling house in another state. Zirbes v. Stratton, 187 Cal. App. 3d 1407, 1417 (Cal. Ct. App. 2" 1986). Unlike the facts in Zirbes, Lynch does not dispute that the Mandeville Canyon Road address was her usual place of abode at the time of the substituted service. (Lynch Decl. (Aug. 4") §2; Penick Decl. 42) 9- Plaintiffs’ Opposition to Defendant's Motion to Vacate and/or Modify Default Judgment Entered May 15, 2006x et la eo 10 W 12 13 14 15 16 a7 18 19 20 2 ey 22 23 27 28 5. There is Ample Evidence That Lynch Had Actual Notice of The Summons and Complaint, Confirming That Service Was Effectuated on Lynch ‘On August 24, 2005 the day of substituted service of the summons and complaint on “Jane Doe” at Lynch's residence, a person named Chad, who identified himself as one of Lynch’s of housemates, called Scott Edelman, Plaintiffs’ lead litigation counsel, to complain about sei the summons and complaint. (Edelman Decl. §8-10). In an email to Edelman on the afternoon of August 24, 2005, the date of the substituted service at Lynch’s residence, Lynch wrote Edelman “If you try to serve this fraudulent law suit on me one more time, I will hold you personally responsible for mental duress.” (Edelman Decl. 10, Exh. BYemphasis supplied). Edelman had no prior contact with Lynch (Edelman Decl. 13). There is only one reasonable explanation for how and why Lynch’s housemate, Chad, and Lynch contacted Edelman about the complaint on the same day that the process server reported serving the summons and complaint on “Jane Doe” at Lynch’s residence. Lynch must have read Edelman’s name and telephone number from the complaint left with “Jane Doe” at her residence that morning (Edelman Decl. $11). Further, Lynch could not have been reading from the mailed summons and ‘complaint because First Legal Support Services had mailed the summons and complaint on the 24", (Edelman, Decl. 6, Exh. A, Proof of Service By Mail) Lynch’s emails to Cohen's attorneys subsequent to the August 24" email also confirmed that she was receiving court notices and emailed notices of court hearings. For example, Lynch emailed Edelman on September 3, 2005 in response to an email to her regarding the Notice of Case Management Conference in Case No, BC 338322. (Edelman Decl. 12, Exh. C). While ignoring all normal procedural matters, Lynch continued to email Edelman many times per day (Edelman Decl. 414), and on October 5, 2005, emailed another senior lawyer at Gibson, Dunn & Crutcher, LLP stating that she intended to obtain legal assistance from “Joanne at ‘We The People’ to file a “Motion to Quash in response to Edelman’s Motion play in the bogus lawsuit Cohen filed in LA Superior Court.” (Edelman Decl 419, Exh. F). In that same October 5, 2005 email, Lynch demonstrated knowledge of the complaint’s contents and the plaintiffs involved. Lynch commented on Edelman’s signature which appears on 10- Plaintiffs’ Opposition to Defendant's Motion to Vacate and/or Modify Default Judgment Entered May 15, 20063 4 5 6 7 8 9 the last page of the complaint: “Did you see how Edelman signs his first name? There’s something very feminine about the way he writes the “S” in his first name.” (Id, at p. 2). Lynch’s emails for the time period from August 24" — October 5", 2005 confirm that service was validly effectuated on Lynch by Plaintiffs on August 24, 2005. Lynch’s email on August 24", the day of service, demonstrated her knowledge of the complaint, the filing attorney's name, his firm and his contact number. Her email of September 3" confirmed that she was aware of the Case Management Conference in Case No. BC 338322. Her email to a senior lawyer at Gibson Dunn on October 5, 2005 further demonstrated detailed knowlédge of the complaint, including the identity of the Plaintiffs. Lynch admits in her supplemental filing that she “was aware that Leonard Cohen had filed a lawsuit against her”, but claims that she was not aware of the allegations in the complaint until in or around April 2010.” (Supp. p. 10; Lynch Decl. (Dec. 24") 45). Plaintiffs’ evidence directly contradicts Lynch's denial of knowledge of the allegations of the complaint until April 2010. Lynch demonstrated a detailed knowledge of the complaint’s claims in her email to Richard ‘Westin, a co-defendant in the case, in the email chain that Lynch had forwarded to Gibson Dunn ‘on October 5, 2005. (Edelman Decl. $19, Exh. F, p. 4)(In the email, Lynch asks Westin: “Why do you think he [Cohen] only filed a law suit pertaining to LC Investments, LLC?) Ill, LYNCH’S MOTION IS UNTIMELY FOR STATUTORY RELIEF FROM THE. DEFAULT JUDGMENT A. Plaintiffs’ Evidence Shows Lynch Had Notice of Plaintiffs’ Request for Entry of Default in December 2005 and Request to Enter Default Judgment in January 2006 and April 2006 Lynch asserts that she had neither notice of the entry of default nor of the Default Judgment, Plaintiffs’ Request for Entry of Default against Lynch (Judicial Council Form 982(a)(6)) was mailed to Lynch on December 5, 2005 to her Mandeville Canyon Road address. (Edelman Decl. (27, Exh. J). Item 6 on Plaintiffs’ Request for Entry of Default contained a Declaration of Mailing (Code Civ. Proc. §587) which stated that a copy of the Request for Entry of Default was mailed first-class, postage prepaid to each defendants’ last known address. (Id., “Ie Plaintiffs’ Opposition to Defendant’s Motion to Vacate and/or Modify Default Judgment Entered May 15, 2006Cer anewn 10 M1 12 13, 14 15 16 17 18 19 20 21 2 23 28 Item 6, p. 2 of 2). Code of Civil Procedure §587 states that the plaintiff's application (or request) for entry of default and/or for default judgment must include an affidavit stating that a copy of the application has been mailed to the defendant's attorney of record, or if none, to the defendant at his or her last known address, Section 587 further provides: “No default under subdivision (a), (b), or (¢) of Section 585 or 586 shall be entered unless the affidavit is filed. The nonreceipt of the notice shall not invalidate or constitute ground for setting aside any judgment.” Code Civ. Proc. § 587 (emphasis supplied). Lynch claims to have been evicted from her home on December 28, 2005, three weeks after Plaintiffs’ Request was mailed. (Lynch Decl. (Dec. 24"), 93). Plaintiffs’ Request for Entry of Default complied with § 587 in that it was mailed to Lynch to her at the address where she still resided. Thus, Lynch’ claimed nonreceipt of both the request for entry of default and default judgment is not in itself a ground for setting aside the default judgment. Code Civ. Proc. § 587; See also Rodriguez v. Henard, 174 Cal. App. 4" 529, 538 (Cal. Ct. App. 2009)(holding that relief from default was not warranted because whether or not defendants, received default papers in the mail, it was clear that they learned of the default proceedings in plenty of time to attempt to set them aside.) ‘The email record with Plaintiffs” attorneys in which Lynch actively participated belies Lynch’s assertions of ignorance of the entry of default and the Default Judgment. On January 19, 2006, an associate attomey at Gibson Dunn sent Lynch an email advising Lynch that Gibson Dunn intended to request an ex parte hearing to obtain an extension of time to submit papers in support of Plaintiffs’ Request for Default Judgment until January 24, 2006. (Edelman Decl. $29, Exh. K). Lynch responded by email to the effect that the entire process allegedly involved “tax fraud” and that she would not attend the hearing. (Edelman Decl. 430, Exh. K). On January 24, 2006, the same associate attorney emailed Lynch copies of the default judgment moving papers consisting of eight documents including case summary, points and authorities, several declarations, including the declaration of a forensic accountant, a request for judgment and a proposed judgment, and again, Lynch acknowledged receipt of these documents with an email statement that she refused to read any of the documents because “she wasn’t served.” (Edelman Decl. 433, Exh. N, p. 2). -12- Plaintiffs’ Opposition to Defendant's Motion to Vacate and/or Modify Default Judgment Entered May 15, 2006wor Sewr aune ul 12 13, 14 15 16 17 18 19 20 2 27 28 B. _ Lynch Admits to Knowledge of the Default in March 2006 and Plaintiffs’ Evidence Shows Lynch Had Acknowledged Receipt of a Copy of the Default Judgment in May 2008 Lynch acknowledges in her “Case History” that she “believed” that a default judgment had been entered against her “on or around March 3, 2006” upon reading a Billboard Magazine article regarding Cohen’s litigation (Motion, Case History, p.19). Lynch denies receiving the Default Judgment that was mailed to her Mandeville Canyon Road address because she was homeless after her eviction on December 28, 2005. (Lynch Decl. (Dec. 24") $3).Lynch declares that she was homeless from December 28, 2005 to November 2006. Id. Lynch had not provided Edelman or the Court with a new mailing address and was sent copies of the Default Judgment to her last known address. (Edelman Decl. 28). Plaintiffs did not have Lynch’s mailing address until she provided a new mailing address in Colorado to one of Cohen’s attorneys in May 2008. (Rice Decl. $16). Plaintiffs’ evidence is incontrovertible that Lynch had knowledge of the Default Judgment no later than May 1, 2008. In connection with litigation in U.S. District Court, District of Colorado among Cohen, Lynch and Cohen’s former investment adviser about ownership of the remaining funds in the Traditional Holdings account held by the investment adviser and interpleaded into the District Court’s Registry, Michelle Rice, Cohen’s lead litigation counsel in that litigation, sent Lynch by email on April 30, 2008, a copy of the Default Judgment. (Rice Decl. 415-17). Lynch’s response to Rice’s email demonstrated knowledge of the Default Judgment, (Rice Decl. $18). C. Lynch Is Not Entitled to Statutory Relief Under CCP §473 and §473.5 Lynch’s Motion to set aside the default is made nearly eight years after the entry of default (December 5, 2005) and over seven years after entry of judgment (May 15, 2006). As such, it is ‘well beyond the six-month jurisdictional limit, and thus relief from the judgment under §473(b) is unavailable, Manson, Iver & York v. Black, 176 Cal. App. 4" 36, 42 (Cal. Ct. App. 5" 2009). The six-month period runs from entry of default, not entry of judgment. Id, Plaintiffs’ evidence shows unequivocally that Lynch had notice in January 2006 of Plaintiffs’ Request to Enter Judgment and -13- Plaintiffs" Opposition to Defendant's Motion to Vacate and/or Modify Default Judgment Entered May 15, 2006ee a awa 10 i 12 13 14 15 16 7 18 19 20 a 2 26 reed was sent Plaintiffs” papers supporting the request. (Edelman Decl. 4932-33, Exh. N). The Default Judgment was not entered against her until May 15, 2006, nearly six months after entry of default on December 5, 2005. Thus, Lynch had been given notice and had an opportunity to seek relief under §473(b) through her “mistake, inadvertence, surprise or excusable neglect.” Statutory relief under §473.5, subdivision (a) is also not available to Lynch. Section 473.5(a) provides that where a defendant is unaware of a default or ensuing judgment, a motion to set aside the default or default judgment must be served and filed within a reasonable time, not to exceed two years after entry of the default judgment. Code Civ, Proc. §473.5(a). In her ‘Supplement, Lynch concedes: “Section 473.5 does not offer Lynch an avenue of relief because her motion was filed over two years after the entry of judgment.” (Supp. p. 16). Finally, Lynch is also not eligible for relief under § 473(d). Under Code Civ. Proc. § 473, subd, (4), 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. Trackman, 187 Cal. App. 4” at 181. Where a party moves under § 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. Id. A trial court has no statutory power under section 473(d) to set aside a judgment that is not void: once six months have elapsed since the entry of a judgment, a trial court may grant a motion to set aside that judgment as void only if the judgment is void on its face. Cruz v, Fagor America, Inc., 146 Cal. App. 4 488, 495-496 (Cal. Ct. App. 4" 2007). In the instant case, the default judgment against Lynch is not void on its face, nor void for lack of service. Therefore statutory relief under section §473(4) is also not available because her motion is filed well beyond the two-year outer limit. IV. LYNCH IS GUILTY OF INEXCUSABLE NEGLECT A. Courts Deny Equitable Relief When Defaulting Party Has Shown Inexcusable Neglect Lynch’s inexcusable neglect is sufficient in itself for this Court to deny Lynch’s request for equitable relief. Davis v. Thayer, 113 Cal. App. 3d 892, 907 (Cal. Ct. App. 2"! 1980)(finding that “where the default occurred as a result of a deliberate refusal to act, and relief is sought after a -14- Plaintiffs? Opposition to Defendant's Motion to Vacate and/or Modify Default Judgment Entered May 15, 2006change of mind, the remedy [vacating the default) is clearly inappropriate.”). A motion to vacate a judgment should not be granted where a party requesting equitable relief was guilty of inexcusable neglect. Aheroni v. Maxwell, 205 Cal. App. 3d 284, 293 (Cal. Ct. App. 2"! 1988); In Re Marriage of Park, 27 Cal. 34 337, 345 (1980). This Court should not reward Lynch’s flagrant and arrogant disregard of her responsibility to present a defense to the original action with equitable relief eight years later. Davis, 113 Cal. App. 3d at 911 (finding equitable relief inappropriate when “none of the authorities cited by defendants deals with a situation so patently void of justification for inaction by the party whose default was taken.”) B. Lynch's Deliberate Inaction to Repeated Actual Notice Constitutes Inexcusable ‘Neglect Warranting Denial of Equitable Relief ‘The evidence discloses that Lynch had repeated actual notice of the action, yet did nothing. (See sections, III A&B, supra.) Instead of answering Cohen’s complaint or filing another responsive pleading, such as a motion to quash service of summons, which she now seeks to do nearly eight years later, Lynch focused her efforts on harassing Cohen and his attorneys. (Edelman Decl. 4920-23). Lynch’s harassment began almost immediately after the service of the summons and complaint. (Edelman Decl. 20). During the course of the litigation, Lynch repeatedly claimed in her emails to Gibson Dunn that she believed that she was not served, yet did not move to quash the service of the summons and complaint and allowed a default judgment to be entered against her. (See, e.g., Edelman Decl. 419, Exh. F; $30, Exh. K; 33, Exh. N). Lynch claims in her Supplement that there were “extraordinary and exceptional circumstances for her ‘tardiness’ of her Motion to Vacate.” (Supp. p. 13). Lynch states that her supplemental declaration articulates the reasons for not presenting a defense to the original action. Id, In her supplemental declaration, Lynch claims to have experienced various “inconceivable hardships,” including two car accidents around the time of the service of the summons and complaint, an eleven month period of homelessness in 2006 following her eviction from her home on December 28, 2005 and the injury to her son’s hand in February 2007. (Lynch Decl. (Dec. 24") $f1-4). Lynch fails to explain, however, how these alleged hards! prevented her from -15- Plaintiffs? Opposition to Defendant’s Motion to Vacate and/or Modify Default Judgment Entered May 15, 2006Ror) el ec 10 i 12 13, 14 15 16 17 18 19 20 2 23 26 27 28 presenting a defense to the original action, The mere fact that a defendant is busy and occupied with other affairs is never an excuse for neglecting to answer a summons within time. Davis, 113 Cal. App. 3d at 909 (defendant denied equitable relief from default judgment was guilty of inexcusable neglect although defendant stated she was under doctor's care for a heart attack and was caring for an elderly mother and a dying husband.) Lynch also claims that she read the allegations in the complaint for the first time in April 2010. (Supp. p. 10; Lynch Decl. (Dec. 24") 95). Plaintiffs’ evidence shows that Lynch demonstrated her knowledge of the complaint and its content through emails to Gibson Dunn in October 2005. (See Section III, supra). When she read the complaint online in April 2010, she “contacted Judge Freeman’s court for information, and publicly announced (her) intention to move to vacate Leonard Cohen’s lawsuit against me and the attendant default judgment.” (Lynch Decl. (Dec, 24") 45). Lynch offers no reasonable excuse for her continued inaction during the period from April 2010 to August 2013, when she filed the instant Motion. (Lynch Decl. (Dee. 24"), 45). ‘After flagrantly ignoring the judicial process in the original action and taking no steps to prevent the Default Judgment from being taken against her despite given repeated notice by Cohen’s attorneys, she now seems to have changed her mind and seeks equitable relief from a [judgment that was entered against her. Lynch, like the appellant in Khourie v. Sabek, “sat on her hands at the same time she thumbed her nose at the judicial process.” Khourie v. Sabek, 220 Cal. App. 3d 1009, 1015 (Cal. Ct. App. 1° 1990) V. LYNCH HAS FAILED TO PROVE EXTRINSIC FRAUD OR EXTRINSIC MISTAKE. In seeking relief from a default judgment, a party can show that extrinsic fraud or mistake exists, such as a falsified proof of service, and such a motion may be made at any time, provided the defaulted party acts with diligence upon learning of the relevant facts. Trackman, 187 Cal. App. 4" at 181. Extrinsic fraud occurs when a party is deprived of the opportunity to present his claim or defense to the court; where he was kept ignorant or, other than from his own negligence, fraudulently prevented from fully participating in the proceeding. Moghaddam v, Bone, 142 Cal. App. 4" 283, 290 (Cal. Ct. App. 4th 2006). (emphasis supplied). The essence of extrinsic fraud is -16- Plaintiffs’ Opposition to Defendant's Motion to Vacate and/or Modify Default Judgment Entered May 15, 2006ee ta ee ot ar) 10 u 12 13, 14 15, 16 17 18 19 20 a 2 23 24 25 26 27 28 cone party's preventing the other from having his day in court. Id, Extrinsic fraud only arises when cone party has in some way fraudulently been prevented from presenting his or her claim or defense. Id. The moving party carries the burden of proof of showing good cause for relief from a default or a default judgment, Moghaddam, 142 Cal. App. 4" 283 at 290-91. A party who seeks to have its default vacated under the court's equity power must make a stronger showing than is necessary to obtain relief under Code Civ. Proc., §473 (relief for mistake or excusable neglect). Aheroni, 205 Cal App. 34 at 291. When relief under Cal. Civ. Proc. Code § 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. Gibble, 67 Cal. App. 4" at 315. 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, Id. Lynch’s asserted grounds for equitable relief from the judgment on the basis of extrinsic fraud appear to be twofold: (1) Lynch argues that the allegedly false Proof of Service constituted extrinsic fraud rendering the judgment void; and (2) Lynch asserts that the Traditional Holdings, LLC transaction as well as the structure and purpose of other entities created as vehicles for holding Cohen’s personal assets constituted “tax fraud” and that Cohen’s lawsuit was filed in “retaliation” for her allegedly reporting Cohen to the IRS in April 2005 A. Lynch Has Failed To Produce Evidence of Extrinsic Fraud to Support Her Assertion That Service Was Fraudulent Lynch has not met her burden of producing extrinsic evidence to overcome the rebuttable presumption of proper service of the summons and complaint in this case. California Evidence Code § 647 provides that the return of a registered process server upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return. Cal. Evid. Code § 647. iling of a proof of service that complies with the applicable statutory requirements creates a rebuttable presumption of proper service. Hearn, 177 Cal. App. 4" at 2105; See also Palm Property Investments, LLC v. Yadegar, 194 Cal. App. 4" 1419, 1427-8 (Cal. Ct. App. 2" 2011)(finding that tenants in an unlawful detainer action did not overcome presumption, under Evid. Code §647, as to the facts stated in the return of a registered process -17- Plaintiffs’ Opposition to Defendant's Motion to Vacate and/or Modify Default Judgment Entered May 15, 2006Ce ran 10 rT 12 13, 14 15 16 17 18 19 20 a a 22 23 ) 26 fs 28 server because tenants offered no evidence to show that they were not properly served, as required under Evid. Code §604). The only evidence Lynch offers contradicting Plaintiffs’ Proof of Service, are the self- serving declarations of Lynch, her son and her current housemate, who, while “in touch with Kelley Lynch in the summer and fall of 2005” did not live at the Mandeville Canyon residence uring the time of service. (Brandt Decl. $3). Given the presumption of proper service, Lynch’s evidence is insufficient to overcome the prima facie evidence of valid service. J & J Sports Productions, Inc. v. Barksdale, 2012 WL 1353903 *5, 2012 U.S. Dist. LEXIS 52583 *14 (E.D. Cal. 2012)(finding that the only evidence contradicting plaintiff's proof of service was defendant ‘Thompson’s own declaration, which was insufficient to overcome the prima facie evidence of valid service pursuant to §415.20(b)); See also Saxon Mortg, Servs., Inc. v. Hillery, 2008 WL 5170180 *3, 2008 U.S. Dist, LEXIS 100056 *6-7 (N.D. Cal. 2008)(finding the declarations of Ms. Hillery and her grandson not enough to overcome plaintifis’ prima facie case of valid service pursuant to §415.20(b)). Lynch concedes that the Mandeville Canyon Road address was her residence at the time of service, yet fails to explain why she would not at least have received the papers subsequently mailed to her at that address. It is clear from her correspondence with Plaintiffs’ counsel as discussed in Section Il. A. 5, above that Lynch had actual notice of the complaint. Lynch challenges the veracity of the factual statements made by the registered process server in his Declaration of Diligence filed with the Proof of Service of Summons on Lynch filed by Plaintiffs on August 25, 2005. (See Edelman Decl. $6, Exh. A). Lynch's factual dispute is threefold: (1) Lynch claims that she was home on each of the days that the process server stated that he attempted personal service on Lynch at her residence and on this basis, Lynch claims that the facts stated with regard to the process server's attempts at personal service are untrue; (See Supp. p. 14; Penick Decl. $4); (2) Lynch asserts that the description of the “Jane Doe” given by the process server does not match her physical description and therefore “Jane Doe” was not Lynch; (Motion p. 3, Supp. p. 14; Lynch Decl. (Aug. 4") 42) and; 3) Lynch claims that she has never had a female co-occupant at her residence that matches the description of “Jane Doe” given 18s Plaintiffs? Opposition to Defendant’s Motion to Vacate and/or Modify Default Judgment Entered May 15, 2006wor et aa 10 u 12 13 14 15, 16 17 18 19 20 2 22 23 by the process server (Motion p. 3; Supp. p. 14; Lynch Decl. (Aug. 4") 4 2; Penick Decl. § 3; Brandt Deel. 3 ). Lynch's son, Rutger Penick, declares that his mother was home on each of the six days (August 17, 19, 20, 21, 22 and 23) that the process server attempted to serve Lynch at the Mandeville Canyon residence noting that “my mother, Kelley Lynch, was home at all times during this period of time and I was frequently present at well.” (Penick Decl. $4)(emphasis supplied). Notably, while Penick declares that Lynch was home at all times during the dates of the six previous attempts, he does not state whether Lynch was home on August 24", the day that “Jane Doe” was served a copy of the summons and complaint at Lynch’s residence. Id. Lynch argues in her Supplement that the process server falsely claimed to have “attempted service for six straight days” because she was “home at all times between August 17 through 24, 2005” after two serious auto-accidents had “destroyed” her car. (Supp. p. 14). Lynch does not provide extrinsic evidence to support either the dates of the car accidents or discuss whether the accidents caused bodily injury that rendered her physically incapable to come to the door to accept service. Lynch declares that the process server’s physical description of “Jane Doe” does not match her physical characteristics. (Lynch Decl. (Aug 4th), §2). She challenges the physical description only by a denial, stating that “she is not 5” ; do not and, in August 2005, did not have blond hair; do not have black eyes; and did not weigh 135 pounds.” Id. Lynch does not provide any other evidence of her true physical characteristics to show that the facts stated in the process server's description are false. Tellingly, the declarations of her son and her current roommate do not provide a physical description of Lynch. Plaintiffs offer three physical descriptions of Lynch that demonstrate that it is more likely than not that Lynch was “Jane Doe.” The first description is contained in the declaration of Michelle Rice. On October 18, 2005, less than two months after the date of substituted service of the original summons and complaint, Ms. Rice, one of Cohen's litigation attomeys, was present du ig the execution of the Order on the Writ of Possession on Lynch by deputies from the Santa Monica Sheriff's Department at Lynch’s Mandeville Canyon home and had the opportunity to observe Lynch over a period of two days. (Rice Decl. 99). Rice declares that Lynch appeared to -19- Plaintiffs? Opposition to Defendant’s Motion to Vacate and/or Modify Default Judgment Entered May 15, 200610 u 12 13 14 15 16 a7 18 19 20 2 fs 28 be 5°6” to 5°7”, with a slender to medium build (which would suggest a weight of approximately 135 pounds) and had short blonde hair with dark brown roots. Id. Lynch’s physical description given by Rice and that of the “Jane Doe” referenced by the process server are very similar. The second physical description offered by Plaintiffs is the physical description of Lynch in Cohen’s California Restraining Order (Edelman Decl. Exh. G). The physical description of Lynch in Cohen’s 2005 Restraining Order also closely matches “Jane Doe”: 5°6”, 130 pounds, Blonde, Blue eyes. Id. The third description is contained in the Declaration of Leonard Cohen, Plaintiff Cohen employed Lynch as his personal manager from approximately mid-1988 to October 2004. (Cohen Decl. 43). During that sixteen-year time period, Cohen declares that Lynch has changed her hair color from time to time from her natural brown to various shades of blonde, even platinum blonde in the late 90’s to early 2000’s. (Cohen Decl. §44-5, Exh. A). Cohen also attaches a picture of Lynch taken in the summer of 2006, which also shows Lynch with short, blonde hair. (Cohen Decl. 46, Exh. B). Thus, Plaintiffs? evidence of Lynch's physical characteristics closely matches the process server's physical description of “Jane Doe” in terms of height, weight and hair color, with the exception of eye color (black versus blue). Both Lynch and Penick declare that no other “‘co-occupant” resided in Lynch’s household at the time matched Jane Doe’s description. (Lynch Decl. (Aug. 4") 42; Penick Decl. 43). Brandt declares that she was “in touch with Kelley Lynch in the summer and fall of 2005”, and that “at no time did she have a female co-occupant.” (Brandt Decl. $3). Defendant’s own evidence, coupled with Plaintiffs? evidence strongly suggests that Lynch is in fact the “Jane Doe” to whom the process server delivered the summons and complaint at Lynch’s residence. The fact that all three of Defendant’s declarants (Lynch, Penick & Brandt) state that Lynch never had a female co-occupant at her residence that matches the physical description of “Jane Doe” also supports the inference that Lynch was in fact the “Jane Doe” served on August 24, 2005. Further, both Lynch and Penick admit that Lynch was living at the Mandeville Canyon residence at the time of service. (Lynch Decl. (Aug. 4") 2-3; Penick Decl. §2). Lynch was personally served the summons and complaint in the related case, BC 341120, by -20- Plaintiffs" Opposition to Defendant's Motion to Vacate and/or Modify Default Judgment Entered May 15, 200610 u 12 13, 14 15, 16 Cea awa 17 18 | 19 | 20 2 m 24 P a5 Plaintiffs at this residence address on October 11, 2005 (Edelman 16, Exh. E). Lynch does not dispute the service in the related case. Lynch is disingenuous as to the evidence from her own hand that she was, in fact, served the summons and complaint as “Jane Doe”, who when told that the summons and complaint were Cohen’s lawsuit, had likely refused to give the process server her name. See, e.g., Trackman, 187 Cal. App. 3 at 183-4; Stafford, 64 Cal. App. 4" at 1178. In litigation in the District of Colorado brought against Cohen and Lynch by Cohen’s former investment adviser, a registered California process server stated in a Return of Service filed with the District Court of the investment adviser’s summons and complaint on Lynch that a woman matching the description given to him of Lynch “refused to identify herself” at Lynch’s residence on Mandeville Canyon Road on August 10, 2005, two weeks before Plaintiffs” process server encountered a “Jane Doe” at Lynch’s residence on August 24, 2005. (See Rice Decl., 912, Exh. A, p. 4). Lynch was “subserved” as “Jane Doe” in the District of Colorado litigation. Id, On these facts, Lynch’s denial that she was not the “Jane Doe” served is simply not credible In her Motion and Supplement, Lynch relies heavily on County of San Diego v. Gorham, where the appellate court set aside a default judgment ten years after it was entered against a purported father in a child support action where fundamental jurisdiction was obtained through an intentional fraud on the court through the filing of a false proof of service. (Motion, p. 6; Supp. pp. 13-14), County of San Diego v. Gorham, 186 Cal. App. 4" 1215 (Cal. Ct. App. 4"* 2010). Her reliance on Gorham, however, is misplaced. Unlike here, Gotham was able to provide the court with copies of court minutes from his criminal trial and six pages of his incarceration history, which constituted extrinsic evidence sufficient to establish his incarceration at the time of the purported personal service at his residence. Id. at 1215, 1222. The trial court and the appeals court found the extrinsic evidence Gorham provided was sufficient to rebut the facts stated in the proof of service filed under penalty of perjury that Gorham had been personally served with the ‘complaint and summons at his residence. Id. at 1230. Concluding that the case was “of exceptional circumstances where equitable relief is warranted”, the Gorham court found the false -21- Plaintiffs’ Opposition to Defendant's Motion to Vacate and/or Modify Default Judgment Entered May 15, 2006Re eee ne Gs 10 Wn 12 13 14 15 16 7 18 19 20 2 2 23 24 25 26 27 28 proof of service rendered the default judgment void for lack of personal jurisdiction and dismissed the action. Id. at 1234, Here, unlike in Gorham, Lynch has not met her burden of providing any extrinsic evidence of fraud to rebut the facts stated in the Proof of Service other than providing blanket denials of service in her declarations. Gorham involved a complete lack of service and notice of the default until nearly four years after the default was entered. Id, at 1222. In this case, the evidence demonstrates that Lynch was validly served at her residence as evidenced by her email to Plaintiffs’ attorney within hours of service. Lynch also had notice of the entry of default in December 2005 and again through email exchanges with Plaintiffs’ attorneys in January and April of 2006. Lynch unconvincingly argues that her circumstances are “identical to Gorham’s.” (Supp. p. 13). These facts are nothing like the “exceptional circumstances” and “unique facts” in Gorham, where Gorham was able to overcome the presumption of valid service by providing extrinsic evidence that the facts stated in the Proof of Service were false. Rather, these are facts typical of the defendant who seeks to avoid service by refusing to identify themselves to the process server. (See, ¢.g., Stafford, 64 Cal. App. 4! at 1178; Trackman, 187 Cal. App. 4" at 183- 4). B. Lynch's Unsubstantiated Allegations of “Tax Fraud” Do Not Constitute Extrinsic Fraud Meriting Equitable Relief From The Judgment The fraud sufficient to justify equitable relief from a judgment must be extrinsic or collateral to the questions examined or determined. Hammell v. Britton, 19 Cal 2d 72, 82 (1941). Lynch repeatedly asserted to Plaintiffs’ attorneys that she was not participating in the litigation because of her subjective belief that the whole matter constituted “tax fraud.” (See, e.g., Edelman Decl. $10, Exh. B; 12, Exh. C; 19; Exh. F). Lynch claims to have “reported” Cohen to the IRS in April 2005 and alleges that Cohen filed his lawsuit in August 2005 as retaliation for her report. (Supp. p. 1; Lynch Decl. (Aug. 4"") 94). The only evidence of an IRS response to her alleged report made in April 2005 is the March 6, 2007 email from Agent Kelly Sopko of the US Treasury Department that she reprints on page 71 of her Case History. Lynch provides no other evidence to substantiate her claim of tax fraud. Plaintiffs’ evidence indicates that Lynch's actual report of -22- Plaintiffs" Opposition to Defendant's Motion to Vacate and/or Modify Default Judgment Entered May 15, 2006a Ce aan eon 10 ul 12 13 14 15, 16 7 18 19 20 2 22 23 24 25 26 27 28 Cohen to the IRS in March 2007 resulted in no change in Cohen’s income tax returns for any of the years at issue after IRS review. (Kory Decl. $16). Lynch’s “Case History” alleges that the corporate structure and purposes of the various corporate entities that were formed as part of Cohen’s estate and tax planning to hold Cohen’s assets, including Traditional Holdings, LLC, were formed for an improper tax purpose. (See, e.g, Case History at pp. 8,10-11). She also alleges that the Court erred in granting a constructive trust to Cohen as to Traditional Holdings, LLC and Blue Mist Touring, Ine. because the Court allegedly did not have jurisdiction over those entities. Plaintiffs’ evidence indicates that Traditional Holdings, LLC, Blue Mist Touring, Inc., and LC Investments, LLC were all formed for a valid business purpose. (Kory Decl. 7), but that Westin and Greenberg improperly accorded Lynch unbridled control over those entities. (Kory Decl. 48). This claim was essential to Cohen's complaint against Lynch and Westin. (Complaint 4749-68) The Court granted a constructive trust over those entities as part of the proper relief sought in the complaint. To the extent that it has any merit, Lynch's alleged theory of "tax fraud" is intrinsic and not extrinsic and therefore does not provide a basis for equitable relief from the default judgment because it was not extrinsic to the questions to be determined and it did not deprive her of an opportunity to present her case in court, Westphal v. Westphal, 20 Cal. 2d 393, 398 (1942) Nothing precluded Lynch from asserting her claims challenging the propriety of the Traditional Holdings transaction as a counterclaim against Cohen, a cross-claim against co-defendant Richard ‘Westin, or as an affirmative defense to Cohen's claims. C. Lynch Also Fails to Show Extrinsic Mistake as Grounds For Equitable Relief Lynch has also failed to establish any evidence of extrinsic mistake, Lynch offers two justifications for not answering Cohen’s complaint: 1) Lynch claims she was not served the ‘summons and complaint; and 2) she believes that Cohen’s California Restraining Order prevented her from participating in the litigation, Extrinsic mistake involves excusable neglect of a party. Moghaddam, 142 Cal. App. 4" at 290. When this neglect results in an unjust judgment, without a fair adversary hearing, and the basis for equitable relief is present, this is extrinsic mistake. Id, Lynch’s beliefs about the validity of service of the complaint and as to the effect of Cohen’s -23- Plaintiffs’ Opposition to Defendant's Motion to Vacate and/or Modify Default Judgment Entered May 15, 2006Cc 30eor an ewrn 10 W 12 13 14 15, 16 17 18 19 20 2 2 restraining order cannot support a claim of excusable neglect because failure to answer the complaint due to ignorance of the law is not grounds for equitable relief under the equitable theory 147 Cal. App. 3d 1143, 1147 (Cal. Ct. App. 2° 1983); of extrinsic mistake. Stiles v. Wall Hearn, 177 Cal. App. 4th at 1206. Lynch, as is apparent in her arguments contained in her Supplemental brief at page 15, appears to hold the mistaken belief that the substituted service was invalid. Ample evidence shows that Lynch was validly served. (See Section II, supra). Failure to answer a complaint on the incorrect belief that service was not valid is not ground for relief when the court finds that the ‘mistake’ is simply the result of “general ignorance of the law, or unjustifiable negligence in discovering the law.” Hearn, 177 Cal. App. 4" at 1206; See also Stafford, 64 Cal. App. 4" at 1181-2. (mistaken belief that service was invalid not a basis to vacate a default on the basis of “mistake, inadvertence, surprise or excusable neglect” under section 473). Lynch's second misunderstanding of the law is her mistaken belief that Cohen’s California Restraining Order issued on November 3, 2005 to protect Cohen from Lynch's harassment, prevented her from answering Cohen’s complaint and participating in the litigation. (“Case History”, p. 18; Supp. p. 5; Lynch Decl. (Aug 4") 48) The no-contact and stay away orders in Cohen’s 2005 Restraining Order contained a specific exclusion which allowed Lynch to attend noticed court appearances in BC 338322 without violating the order. (Edelman Decl. (23, Exh. G, Sections 6&7). Cohen’s application for a Restraining Order was personally served on Lynch at, her residence on October 18, 2005. (Edelman Decl. 22; Rice Decl. 8). Lynch did not attend the hearing on the permanent order on November 3, 2005. (Edelman Decl. (23) While the no-contact provisions and stay away orders in Cohen's Restraining Order prevented Lynch from contacting Cohen directly as he was the protected party, it did not prevent Lynch from communicating with Cohen's litigation attomey, Scott Edelman or his associate, with whom Lynch corresponded by email after Cohen’s 2005 Restraining Order was issued. (Edelman Decl. $918, 29-35). The substantial email record demonstrates that Lynch continued to contact Edelman, Rice, Kory and even the protected party, Cohen, after the issuance of Cohen’s Restraining Order in November 2005. (Edelman Decl. ${14,18; Rice Decl. 23). Thus, Lynch’s conte -24- Plaintiffs’ Opposition to Defendant’s Motion to Vacate and/or Modify Default Judgment Entered May 15, 2006 that Cohen'sCalifornia Restraining Order prevented her from answering Cohen’s complaint and participating in the litigation has no merit, and therefore cannot form a cognizable basis for excusable neglect or extrinsic mistake meriting equitable relief. Stiles, 147 Cal. App. 3d at 1147. VI. LYNCH FAILS TO ESTABLISH THE ESSENTIAL ELEMENTS OF A CLAIM FOR EQUITABLE RELIEF Assuming arguendo that Lynch is entitled to equitable relief under theories of “extrinsic fraud” or “extrinsic mistake”, she has failed to meet the additional burden of the stringent three part test for equitable relief. A moving party must satisfy three elements: (i) the defaulted party must demonstrate that it has a meritorious case; (ii) the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action, and (iii) the moving party must demonstrate diligence in seeking to set aside the default once it has been discovered.” Moghaddam, 142 Cal. App. 4" at 291; Gibble, 67 Cal. App. 4” at 315. A. Lynch Has Failed to Present a Meritorious Case The gist of Cohen’s complaint against Lynch was that she had misappropriated well in excess of the 15% management compensation to which she was entitled from corporate entities and accounts that Cohen owned, including Lynch’s misappropriation of funds from his personal bank accounts and several trusts to which she had no entitlement. (Complaint $3). Lynch's unsubstantiated assertions in her “Case History” that Cohen's business entities were not properly formed or were formed for an improper tax purpose by Cohen’s advisers, is not a defense to Cohen’s conversion and breach of fiduciary duty claims against Lynch, Lynch also fails to ifs provide any evidence to dispute Plaintiffs’ forensic accounting filed in support of Pla Request to Enter Judgment, which showed that Lynch had improperly taken a total of over $7 million of funds belonging to Cohen over a six-year period. (Kory Decl. 10). On these facts, Lynch does not have a meritorious case because Lynch has not shown that were the matter to be heard on the merits, a more favorable result would be obtained. McCreadie v. Arques, 248 Cal. App. 2d 39, 45 (Cal. Ct. App. 1" 1967): See also Wilson v. Wilson, 55 Cal. -25- Plaintiffs’ Opposition to Defendant's Motion to Vacate and/or Modify Default Judgment Entered May 15, 2006oe ee 10 uM 2 13 14 15 16 7 18 19 20 Pat = 2 ko 26 27 4 28 App. 2d 421, 427 (Cal. Ct. App. 1 1942)(Equity will not overtum a judgment unless it appears that a like judgment would not follow). B. Lynch Has Failed to Present a Satisfactory Excuse for Not Presenting a Defense To ‘The Original Action Lynch has also failed to present a satisfactory excuse for failing to present a defense to the original action, In her Motion, Lynch offers several justifications for not presenting a defense to the original action, including claims that (1) Cohen’s California Restraining Order prevented her participating in the litigation; and (2) that she refused to participate in “tax fraud” and had reported Cohen’s suspected tax fraud to the IRS in April 2005, prior to Cohen’s filing suit in August 2005. Lynch offers several additional justifications in her supplemental declaration, alleging various hardships, but does not explain how these hardships prevented her for presenting a defense. (See Section IV.B, supra)(Lynch Decl. (Dec. 24") #91-4).. Lynch claims in her Motion and Declaration (Aug. 4") that Cohen has “used fraudulent restraining orders to prevent me from being involved in the litigation with respect to this matter” (Lynch Decl. (Aug. 4") 48). Her mistaken belief that Cohen’s California Restraining Order issued on November 3, 2005 prevented her from participation in the litigation is not a satisfactory ‘excuse for failing to answer the complaint and presenting a defense to the original action. As a [justification for not filing her answer, Lynch’s argument fails completely because Cohen applied for and was granted the California Restraining Order on November 3, 2005, afier Lynch's answer or other responsive pleading to Plaintiffs’ complaint was due in October 2005. (Edelman Deel. '{23). As discussed in Section V.C, supra, the 2005 California Restraining Order did not prevent Lynch from communicating with Cohen’s litigation attorneys at Gibson Dunn or attending noticed court hearings. (Edelman Decl. 23, Exh. G, Sections 6 & 7). In fact, Lynch’s conduct subsequent to its issuance, demonstrated that Cohen’s Restraining Order did not prevent her harassment of Cohen. (Rice Decl. $23) Lynch repeatedly defied the no-contact provisions of the Order, making it necessary for Cohen to seek a new order of protection in Colorado in September 2008, where Lynch was then living. (Rice Decl. ${23-24). Cohen’s Permanent Colorado Restraining Order was issued in September 2008, over two years after the May 15, 2006 Default -26- Plaintiffs’ Opposition to Defendant's Motion to Vacate and/or Modify Default Judgment Entered May 15, 2006Rot ee ee 10 1 12 13 14 15 16 a7 18 19 20 a 2 23 24 25 > 26 27 28 Judgment, (Rice Decl. 24, Exhibit J). The Colorado Restraining Order was also issued beyond the time for Lynch to apply for six-month statutory relief under Section 473(b) and the two-year period of statutory relief from the Default Judgment under Section 473.5. Lynch’s second justification is patently specious. She makes an unsubstantiated allegation that Cohen’s civil complaint was filed in retaliation against her for reporting Cohen’s alleged “tax fraud” to the IRS in April 2005. (Supp. p. 1). Even if true, Lynch’s report to the IRS did not obviate the need for her to respond to Cohen’s civil complaint. Further, the evidence indicates that Lynch actually reported Cohen to the IRS in March 2007, eighteen months after Cohen filed the complaint, (Kory Decl. $14, Ex. B). C. Lynch Has Failed to Prove Diligence ‘One moving in equity to set aside a default judgment must act diligently in making his motion after he learns of the default judgment, and in determining whether due diligence has been exercised, a court must examine both the time factor and the possible prejudice which might result from setting aside the default. MeCreadie, 248 Cal. App. 2d at 47. The greater the prejudice, the more timely must the relief be sought. 1d, Lynch’s delay fails to meet the requisite diligence standard. Courts have established that a delay of even a little more than one year fails to reflect diligence. McCreadie, 248 Cal. App. 2d at 47 (relief not timely sought by defendant more than a year following written notice that a default had been taken); Lee v. An, 168 Cal App 4” 558, 566 (Cal. Ct. App. 2" 2008)(27 months does not reflect diligence necessary for equitable relief); Stiles, 147 Cal. App. 3d at 1150 (20 month delay before taking action to set aside judgment fails to demonstrate proper diligence). Cohen has relied on the Default Judgment, and to vacate the judgment after over seven years after its entry would severely prejudice him. (Cohen Decl. $7) In September 2008, a U.S. District Court in Colorado relied on the May 15, 2006 Judgment in issuing an order ting the remaining $154,000 in funds in Traditional Holdings, LLC to Cohen that had been interpleaded into the District Court’s Registry by Cohen’s former investment adviser. (Rice Decl (20, Exh. H; Cohen Decl. §7). Finally, were the court to grant Lynch’s requested relief to set -27- Plaintiffs’ Opposition to Defendant's Motion to Vacate and/or Modify Default Judgment Entered May 15, 2006awe wn 10 W 12 13 14 15 16 7 18 19 20 2 ayo a3 N26 17 b 28 aside the judgment and have a trial on the merits, Plaintiffs would be forced to carry the burden of proof as to matters that occurred prior to October 2004, nearly ten years ago. (Cohen Decl. 47). VII. LYNCH’S MOTIONS TO QUASH AND TO DISMISS UNDER CODE CIV. PROC. §§ 583.210 AND 583.250 SHOULD BE DENIED That Lynch was properly served is supported by the evidence. Therefore, Lynch’s requested relief styled as a “motion to quash service of the summons and complaint”, while untimely and procedurally defective, should also be denied because the motion lacks evidence to support the underlying assertion that service was invalid or fraudulent. Lynch’s Motion to Dismiss under CCP §583.210 and §583.250 should also be denied because service of the summons and complaint were valid and both the service and the return of summons were made within three years of the filing of the action. Code Civ. Proc. §583.210 and §583.250. VIII. CONCLUSION Moving over seven years after the Court's entry of default judgment against her, Lynch appeals to this Court’s equitable inherent powers to relieve her from a default judgment entered against her in an action where she deliberately chose inaction. Lynch admits her Motion is “tardy” but offers no reasonable justification for not responding to the complaint and fails to show that she diligently moved to vacate the judgment once she learned of it, by her own admission, as early as March 2006. Based on her inexcusable neglect, the doors of equity should be closed. Neither of her attacks on the judgment have merit. The judgment is not void on its face due to a defective proof of service. Nor is the judgment void due to “extrinsic fraud.” Lynch seeks to compare her case to the “exceptional circumstances” in Gorham. Unlike Gorham, Lynch offers no objective demonstrative evidence to disprove the facts stated in the Proof of Service. Rather, the evidence demonstrates that Plaintiffs” service on Lynch was valid as evidenced in her email to Plaintiffs’ attorneys within hours of service and her subsequent emails demonstrating detailed knowledge of the claims within the complaint. Lynch also fails to establish the essential elements of a claim to -28- ion to Defendant’s Motion to Vacate andlor Modify Default Judgment Entered May 15, 2006 Plaintiffs’ Oppo:ea eo) ar) equitable relief. For all the foregoing reasons, Cohen prays that the Court deny Lynch’s requested relief in its entirety with prejudice. DATED: January 6, 2014 Respectfully sub LL, By: LL 2 MICHELLE L, RICE KORY & RICE, LLP 9300 Wilshire Blvd Suite 200 Beverly Hills, CA 90212 JEFFREY KORN 714 West Olympic Boulevard, Suite 450 Los Angeles, California 90015 ATTORNEYS FOR PLAINTIFFS -29- Plaintif¥s’ Opposition to Defendant's Motion to Vacate and/or Modify Default Judgment Entered May 15, 2006