A Mistake in Service Is Not Extrinsic Fraud

Yolo Cnty. Dept. of Child Support Servs. v. Myers, No. C075671 (D3 Jun. 10, 2016)

Courts have equitable power to vacate default judgments—even really old ones—on certain narrow grounds, especially when a plaintiff established personal jurisdiction by filing a false proof of service. But to do that, the POS itself needs to be fraudulent; a motion to vacate does not lie simply because of some defect in service in the underlying action. Defendant didn’t satisfy that standard here. Nor could he challenge partiality of the judge in either this or the original case. In the original case, Code of Civil Procedure § 170.4 specifically says that a disqualified judge can still deal with defaults. So even if the old judge deserved a DQ—which the court here expresses some doubt—he still had power to sign the default order. And as to the current case, the challenge was based on disagreement with the merits of rulings, which is a legit not grounds to DQ the judge. And in any event, DQ motions aren’t appealable—they can be reviewed only by writ. Which plaintiff didn’t seek here.

Affirmed.