Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CV024878
NICHOLSON, J.
Plaintiff, the Cadle Company, appeals from the trial court’s order pursuant to Code of Civil Procedure section 473.5 (hereafter, section 473.5) setting aside a default judgment that plaintiff had obtained against defendant, Allison S. Taylor. We conclude that the trial court did not abuse its discretion and therefore affirm.
BACKGROUND
Plaintiff, an Ohio corporation, sued defendant for breach of contract, alleging that defendant owed more than $36,000 on a $12,198.66 promissory note with a 19.92 percent interest rate. After several unsuccessful attempts to serve notice of the complaint and summons on plaintiff at her residence, a process server left a copy of the documents with an adult male at defendant’s residence. Another copy of the documents was mailed to defendant on the same day.
When defendant did not answer the complaint, plaintiff obtained entry of default and, on August 23, 2005, obtained a default judgment against plaintiff for more than $41,000. The requests for entry of default and for default judgment were mailed to defendant’s residence. On April 10, 2007, less than two years after entry of the default judgment, defendant, representing herself, filed a motion to set aside the default judgment pursuant to section 473.5. She asserted that she did not receive actual notice of the action in time to defend.
In support of her motion to set aside the default judgment, defendant filed a declaration under penalty of perjury. In the declaration, defendant stated that, at the time of the alleged service at her residence, she and her two minor children lived alone. There was no adult male living or staying at her home. At the hour of the alleged service, 9:05 a.m., she was at work and her children were at school. She did not receive the complaint by mail. She found out about the action and the default judgment about three weeks before she filed her motion to set aside.
Plaintiff filed an opposition to the motion, along with a declaration of plaintiff’s counsel. In the declaration, counsel stated that defendant’s answering machine has a child’s voice stating, “Mommy and Daddy aren’t home now.”
The trial court held a hearing on the motion. On the same date, defendant filed a proposed answer to the complaint.
At the hearing, defendant stated that she was not receiving mail at her residence during the times relevant to this action because she was going through a divorce and her husband was having the mail forwarded to him.
The trial court granted the motion to set aside the default judgment. The ruling did not state the facts upon which the motion was granted.
DISCUSSION
Plaintiff contends that granting relief under this statute was error for three reasons: (1) the motion was not filed within 180 days after service of the notice of default judgment, (2) the mailing of the summons to defendant’s residence precluded relief under section 473.5, and (3) defendant did not act with reasonable diligence. The contention is without merit.
A. Law Concerning Setting Aside of Default Judgment
Section 473.5, subdivision (a) provides for setting aside a default judgment when service of summons did not result in actual notice. It states: “When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.” (§ 273.5, subd. (a).)
“Discretionary relief based upon a lack of actual notice under section 473.5 empowers a court to grant relief from a default judgment where a valid service of summons has not resulted in actual notice to a party in time to defend the action. (Tunis v. Barrow (1986) 184 Cal.App.3d 1069, 1077–1078; § 473.5 subd. (a).) A party seeking relief under section 473.5 must provide an affidavit showing under oath that his or her lack of actual notice in time to defend was not caused by inexcusable neglect or avoidance of service. (Tunis v. Barrow, supra, 184 Cal.App.3d at pp. 1077–1078; § 473.5 subd. (b).)” (Anastos v. Lee (2004) 118 Cal.App.4th 1314, 1319.)
Before considering plaintiff’s contentions, we must determine the appropriate standard of review. Plaintiff claims that, because the trial court did not make any specific findings on factual issues, we must apply a de novo standard of review. This is incorrect. Even though the trial court did not make specific findings of fact, we must presume the order setting aside the default judgment was correct. Based on this presumption, we consider the facts presented to the trial court and draw, in favor of the order, any reasonable inference from the facts. (See Haley v. Casa Del Rey Homeowners Assn. (2007) 153 Cal.App.4th 863, 872 [inferences drawn in favor of order].) Basing our review on these facts and inferences, we review the trial court’s order for abuse of discretion. (Anastos v. Lee, supra, 118 Cal.App.4th at pp. 1318-1319.)
B. Plaintiff’s Contentions
1. Timeliness
Plaintiff argues that the motion to set aside the default judgment was untimely because (a) defendant was required to file the motion within 180 days after service of notice of the entry of the default judgment and (b) the two-year provision was inapplicable because defendant did not show intrinsic fraud. We disagree.
a. 180-day Provision
Section 473.5 requires filing within “180 days after service on him or her of a written notice that the default or default judgment has been entered.” (Subd. (a).) Therefore, when a defendant seeks to set aside a default judgment, he or she must do so within 180 days after service of a written notice of default judgment. Although plaintiff served by mail the request of entry of default and the request for entry of default judgment on defendant, neither of those invoked the 180-day provision of section 473.5.
There is no support in the record for plaintiff’s assertion that a notice of entry of default judgment was served on plaintiff. Plaintiff does not claim that the actual order entering default judgment was served on defendant. Instead, plaintiff states: “[A]n Abstract of Judgment was recorded on September 1, 2005. [Citation.] In accordance with the Recorder’s procedures, a Notice of Lien would have been mailed on that date. This mailing also constituted notice of entry of Default Judgment . . . .”
To the contrary, this does not establish that a notice of entry of default judgment was served on defendant. There is, in the record on appeal, no proof of service of written notice of entry of the default judgment, and plaintiff does nothing to establish what the recorder’s procedures are and whether those procedures were followed, let alone establishing that the notice of lien is notice of the entry of the default judgment.
b. Intrinsic Fraud
Section 473.5 allows a motion within two years after entry of a default judgment if the defendant did not receive actual notice of the action. Plaintiff claims that this two-year provision applies only if the defendant establishes intrinsic fraud. For this proposition, plaintiff cites Moghaddam v. Bone (2006) 142 Cal.App.4th 283. That case, however, did not apply section 473.5. Its language concerning fraud dealt only with the trial court’s inherent equitable power to set aside a default even in the absence of an enabling statute. (Id. at pp. 290-291 [discussing extrinsic, not intrinsic, fraud or mistake under court’s inherent powers].) Here, section 473.5 makes no such showing necessary.
2. Mailing of Complaint and Summons
Relying on a 1932 California Supreme Court case, plaintiff asserts that defendant cannot complain of the failure of substituted service to give her actual notice because the complaint and summons were also mailed to her. In Palmer v. Lantz (1932) 215 Cal. 320, the defendant sought to set aside a default by claiming that publication of the summons did not give him actual notice of the action. The Supreme Court rejected the argument because the defendant also received the summons by mail. (Id. at p. 324.) Plaintiff’s reliance on Palmer v. Lantz is misplaced because, unlike the defendant in that case, defendant here did not actually receive the mailed complaint and summons.
3. Reasonable Diligence
Finally, plaintiff claims that defendant was not reasonably diligent. (§ 473.5, subd. (a) [requiring defendant to act within a reasonable time].) In making this claim, however, it construes all of the evidence in its own favor. For example, it asserts that the message on the answering machine (stating that “Mommy and Daddy aren’t home now”) proved that there was an adult male in the residence to receive substituted service. It also asserts that defendant received and ignored the mailed notices. As noted above, however, we draw all reasonable inferences in favor of the order. (Haley v. Casa Del Rey Homeowners Assn., supra, 153 Cal.App.4th at p. 872.) From the evidence provided to the trial court, it is reasonable to infer that (1) there was no adult male in defendant’s residence to receive substituted service and (2) defendant did not actually receive the mailed notices.
Plaintiff argues: “For her claim to be viable, [defendant] would have to have proven all of the following: that the Plaintiff’s Process Server committed perjury, and that the Plaintiff’s attorney committed perjury at least twice, and that the Recorder failed to send the required Notice of Lien. There was insufficient evidence to support any such allegations, and the Motion should have been denied on this grounds [sic].”
This hyperbolic statement proves nothing. It was enough for defendant to establish that she did not receive actual notice by the substituted service or mailings. The trial court implicitly credited defendant’s showing. Accordingly, plaintiff fails to establish that the trial court abused its discretion in granting the motion to set aside the default judgment.
DISPOSITION
The order is affirmed. Defendant is awarded her costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
We concur: SCOTLAND, P. J., RAYE, J.