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LLamas v. Brauer6/12/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
On April 18, 1997, Diane Brauer was granted an $845,006.88 judgment against Gonzalo Llamas for injuries arising from an automobile accident. On October 13, 1999, Llamas filed a complaint in equity to set aside that judgment. Llamas appeals the court's grant of summary judgment in favor of Bauer, contending the 1997 judgment is void because (1) the statement of damages was not served with the complaint; (2) the second statement of damages was not served on Llamas and was served after entry of the default; and (3) the 1997 judgment was entered less than 30 days after service of the statement of damages. We affirm.
FACTUAL AND PROCEDURAL HISTORY
On November 16, 1995, Brauer served Llamas and others with a complaint for damages for injuries arising out of an automobile accident. A statement of damages under Code of Civil Procedure section 425.115 was filed in January 1996. On February 25, 1996, Llamas answered the complaint.
In September 1996, Llamas retained Walter Wenko as counsel. When Wenko failed to appear at a disposition conference on October 11, the court issued an order to show cause hearing on October 18, where it was learned that Wenko had been suspended. On November 8, Michael Moustakas appeared as Llamas's counsel. On December 20, Moustakas appeared telephonically and said he was representing the defendants; the court rescheduled the follow-up conference to allow Moustakas to file a substitution of attorney form.
On March 11, 1997, Moustakas and Llamas appeared for trial and Moustakas stated Llamas would not contest the case. At that time Llamas confirmed on the record that Moustakas was his counsel. The court ruled it would enter judgment in favor of Bauer after the court determined the amount of damages at a prove-up hearing. The second statement of damages was served on Moustakas on March 28 and filed on April 16. The request for entry of default and judgment was served on Moustakas and filed on April 16.
On April 18, 1997, the court entered a default judgment of $845,006.88 in favor of Bauer. Llamas did not pay the judgment and filed for bankruptcy . The bankruptcy case was dismissed on January 30, 1998. On April 2, 1999, in another proceeding, the trial court voided a number of fraudulent transfers of Llamas's properties and those properties became available to pay Llamas's debts, including this judgment. Llamas filed this action to set aside the 1997 default judgment on October 14, 1999.
DISCUSSION
I. Summary Judgment
Summary judgment is granted when there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., ยง 437c, subd. c.) We review de novo the trial court's decision to grant summary judgment and are not bound by the trial court's stated reasons or rationales. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1001.) Further, we review issues of statutory interpretation de novo. (Heavenly Valley v. El Dorado County Bd. of Equalization (2000) 84 Cal.App.4th 1323, 1334.)
II. Nature of the Judgment in the Underlying Case
Llamas contends he may attack the underlying judgment at any time because it was void due to procedural defects underlying the grant of a judgment of default. We disagree because the judgment was not actu
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