Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court for Los Angeles County, No. BC358266, Ernest M. Hiroshige, Judge. Affirmed.
Ralph E. Harrison II and Sheila Harrison for Defendant and Appellant.
Oldman, Cooley, Sallus, Gold, Birnberg & Coleman, Ronald Gold, and Peta-Gay Gordon for Plaintiff and Respondent.
WILLHITE, J.
Defendant Stephen Willis appeals from an order denying his motion under Code of Civil Procedure section 473, subdivision (d) (section 473(d)) to vacate a default judgment in favor of plaintiff Bridgette Robinson. We affirm.
BACKGROUND
Robinson obtained a default judgment against Willis on May 21, 2007. Eleven months later, on April 18, 2008, Willis filed a motion under section 473(d) to set aside the default and default judgment on the ground that he was not served with the summons and complaint and therefore the judgment was void. He supported his motion with his declaration, in which he stated that he had no knowledge of Robinson’s lawsuit until his car was levied upon in January 2008, and that he was not served with a copy of the summons or complaint before that time.
Robinson filed a declaration in opposition to Willis’ motion, in which she stated that she and Willis had been romantically involved for much of the period between October 2005 to October 11, 2007. Although she did not expressly state it, it appears that she and Willis lived together at 5218 Sherbourne Drive in Los Angeles (the Sherbourne property); she explained she was not able to move out for financial reasons. She stated, however, that she witnessed that many of Willis’ financial papers, including his paycheck stubs, cell phone bills, and auto loan statements were addressed to Willis at 17224 Ambler Avenue in Carson (the Ambler property). She also declared that Willis called her several times on September 15, 2006 (the date Willis was served at the Ambler property by substituted service) to discuss the lawsuit, including the amount of money she sought in the complaint.
In addition to her own declaration, Robinson supported her opposition to Willis’ motion with declarations from her attorney and a paralegal in the attorney’s office. In his declaration, the attorney described several documents related to the lawsuit that were mailed to Willis at the Sherbourne property and/or the Ambler property on September 12, 2006 (the date the complaint was filed), September 25, 2006, November 10, 2006, December 4, 2006, January 11, 2007, February 22, 2007, April 2, 2007, May 1, 2007, and September 27, 2007. The attorney also declared, on information and belief, that Willis was served at the Ambler property by substituted service on Willis’ brother, after the process server twice tried, unsuccessfully, to personally serve Willis.
Although it is not included in the record on appeal, the attorney states that the process server’s Declaration of Diligence was filed with the court.
The trial court took the matter under submission following a hearing. Willis attempted to file a reply to Robinson’s opposition after the hearing, but the court granted Robinson’s motion to strike the reply as untimely. The court then denied Willis’ motion, finding that Robinson had served Willis by substituted service and that Willis’ claim that he was unaware of the lawsuit until his car was taken was not credible. Willis timely filed a notice of appeal from the court’s order denying his motion.
DISCUSSION
Willis argues on appeal that the trial court erred by denying his motion to vacate the default judgment under section 473(d) because he submitted a declaration stating that he did not know about the lawsuit until his car was levied upon, and the court was required to judge the facts in the light most favorable to the moving party. He also argues that the trial court erred by failing to exercise its discretion and vacate the default judgment on equitable grounds. He is incorrect.
Willis’ first argument is based upon a faulty premise. Tellingly, Willis cites no legal authority for his assertion that the trial court was required to judge the evidence most favorably to the moving party. That is because there is no such authority. In fact, it is well established that when conflicting evidence is presented on a motion to set aside a judgment, it is up to the trial court to determine the weight and sufficiency of the evidence and the inferences to be drawn from it. (See, e.g., Wyoming Pacific Oil Co. v. Preston (1959) 171 Cal.App.2d 735, 741 [affirming trial court’s denial of motion to set aside judgment, where there was conflicting evidence regarding whether defendant had been served with summons and complaint and trial court disbelieved defendant’s evidence]; Stahler v. Seaboard Mortg. Corp. (1935) 9 Cal.App.2d 115, 117 [same].)
We review the trial court’s ruling for abuse of discretion, and will not disturb the ruling in the absence of a clear showing of abuse. (Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1249.) No such showing was made here. Robinson presented evidence that multiple documents related to the lawsuit were sent to Willis at both the Sherbourne property and the Ambler property over the course of a year, and that Willis called Robinson on the day the summons and complaint was served to discuss the contents of the complaint. In light of this evidence, it was reasonable for the court to find that Willis was not credible when he declared he was never served and was unaware of the lawsuit until his car was levied upon. Therefore, we hold that the trial court did not abuse its discretion by denying Willis’ motion to set aside the judgment under section 473(d).
Willis’ second argument on appeal -- that the trial court erred by not vacating the judgment on equitable grounds -- fails because Willis never asked the court to vacate the judgment on equitable grounds. Willis’ notice of motion stated that the motion was made under section 473(d), and his memorandum of points and authorities addressed only section 473(d) as a ground for relief. Therefore, the trial court was not required to consider any other possible ground for relief. (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125-1128.) Having failed to request equitable relief, Willis cannot now assert the court erred by failing to grant such relief.
DISPOSITION
The order denying Willis’ motion to set aside the default judgment is affirmed. Robinson shall recover her costs on appeal.
We concur: EPSTEIN, P. J., SUZUKAWA, J.