# Cal. Capital Ins. Co. v. Hoehn

> California Supreme Court · November 18, 2024

URL: https://www.frixlaw.com/law-library/cases/10742571

## Case

- **Court:** California Supreme Court
- **Decided:** November 18, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE SUPREME COURT OF
CALIFORNIA

CALIFORNIA CAPITAL INSURANCE COMPANY et al.,
Plaintiffs and Respondents,
v.
CORY MICHAEL HOEHN,
Defendant and Appellant.

S277510

Third Appellate District
C092450

Placer County Superior Court
SCV0026851

November 18, 2024

Justice Jenkins authored the opinion of the Court, in which
Chief Justice Guerrero and Justices Corrigan, Liu, Kruger,
Groban, and Evans concurred.
CALIFORNIA CAPITAL INSURANCE COMPANY v. HOEHN
S277510

Opinion of the Court by Jenkins, J.

Code of Civil Procedure section 473, subdivision (d)
(hereafter section 473(d)),1 provides in relevant part that a court
“may . . . on motion of either party after notice to the other party,
set aside any void judgment or order.” Under this provision, a
party may move to vacate a judgment on the ground of improper
service of process. A line of decisions, followed by the Court of
Appeal below, has held that such motions must be made within
a “reasonable time” if the challenged judgment is not void on its
face and its invalidity must be established by extrinsic evidence.
To set the outer limit for what constitutes a reasonable time,
courts have borrowed the two-year time limit of section 473.5,
which applies where proper constructive service was given but
the defendant did not receive actual notice.2

1
All statutory references are to the Code of Civil Procedure
unless otherwise indicated.
2
Section 473.5, subdivision (a) provides: “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

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Opinion of the Court by Jenkins, J.

We granted review in this case to decide whether these
decisions are correct. We hold that they are not. As explained
below, we conclude that this judicially created rule finds no
footing in the statute’s text, has not been adopted by the
Legislature, and lacks any sound justification. We reverse the
Court of Appeal’s judgment.
I. BACKGROUND
On June 16, 2009, fire destroyed the building in which
defendant Cory Michael Hoehn and his roommate, Forest Kroll,
had leased an apartment. An investigator for the building’s
insurer, plaintiff California Capital Insurance Company
(California Capital or the company), determined that “careless
smoking” on the patio caused the fire. Although the investigator
reached no conclusion about who started the fire or who was
present when it began, California Capital sued Hoehn and Kroll
in March 2010 for “general negligence,” alleging that they
caused the fire due to “improperly discarded smoking
materials.” The company asked for $472,326 in damages.
In March 2010, the company attempted to serve Hoehn
with a complaint and summons in the lawsuit. The affidavit
supporting the return of service stated that the summons and
complaint were left with Shannon Smith and identified Smith
as “Girlfriend,” “Co-Occupant,” and “a competent member of the
household.” A copy of the summons and complaint was also

default judgment has been entered.” Subdivision (c) provides
that “Upon a finding by the court that the motion was made
within the period permitted by subdivision (a) and that his or
her lack of actual notice in time to defend the action was not
caused by his or her avoidance of service or inexcusable neglect,
it may set aside the default or default judgment on whatever
terms as may be just and allow the party to defend the action.”

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Opinion of the Court by Jenkins, J.

mailed to Hoehn’s address. (See § 415.20, subd. (b) [permitting
substitute service “at a person’s dwelling . . . in the presence of
a competent member of the household” if the summons and
complaint is mailed to the person’s residence].) California
Capital was unable to serve Kroll and dismissed him from the
lawsuit.
In April 2011, approximately a year after attempting to
serve Hoehn, California Capital requested and obtained a
default judgment against Hoehn for $486,528, based on an
investigator’s declaration that careless smoking habits caused
the fire.
In March 2018, California Capital assigned its rights to
the default judgment to Sequoia Concepts, Inc. Based on a May
2018 writ of execution, the sheriff of Placer County, in January
2020, served on Hoehn’s employer an earnings withholding
order, placing a lien on Hoehn’s wages in order to begin payment
of the default judgment.
In March 2020, Hoehn filed a motion to set aside the
default judgment. In a supporting declaration, he stated as
follows: He did “not recall receiving or seeing the Summons or
Complaint at any time.” Shannon Smith “did not live with” him
at the apartment and he “never received a summons or
complaint or any legal paperwork from [her] at any time. He
“did not receive any request for judgment or notice of a default
judgment hearing” in the case. He learned that there had been
a default judgment against him in January 2020, when his
employer informed him that a lien had been placed on his wages.
He promptly contacted an attorney who filed the motion to set
aside the default judgment.

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As here relevant, Hoehn’s motion sought relief on two
theories: (1) the court should exercise its power under section
473(d) to vacate the judgment; and (2) the judgment was
obtained by extrinsic fraud or mistake. The trial court, following
a long line of appellate court opinions, held that relief under
section 473(d) was not available because Hoehn made the
motion more than two years after entry of the default judgment.
Regarding Hoehn’s second asserted ground for relief, the court
concluded that “the fact that the proof of service of summons
misidentifies Shannon Smith as a co-occupant” did not
“demonstrate that the statement constitutes extrinsic fraud.”
The Court of Appeal affirmed. Relying on Trackman v.
Kenney (2010) 187 Cal.App.4th 175 (Trackman) and Rogers v.
Silverman (1989) 216 Cal.App.3d 1114 (Rogers) — and rejecting
Hoehn’s criticisms of those decisions — the court concluded that
relief under section 473(d) was time-barred. It further
concluded, like the trial court, that the mistake in service was
insufficient to make out a claim of extrinsic fraud that would
support equitable relief from a default judgment.
We granted review.
II. DISCUSSION
A. The Legal Framework
“ ‘An elementary and fundamental requirement of due
process in any proceeding which is to be accorded finality is
notice reasonably calculated, under the circumstances, to
apprise interested parties of the pendency of the action and
afford them the opportunity to present their objections.’
[Citation.] Failure to give notice violates ‘the most rudimentary
demands of due process of law.’ ” (Peralta v. Heights Med. Ctr.,
Inc. (1988) 485 U.S. 80, 84 (Peralta).) Accordingly, the high

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Opinion of the Court by Jenkins, J.

court has held that due process does not permit a state to require
parties not properly served to show a meritorious defense in the
underlying action before they can have their default judgments
vacated. (Id. at p. 86.) Likewise, California courts have held
that “compliance with the statutory procedures for service of
process is essential to establish personal jurisdiction . . . . Thus,
a default judgment entered against a defendant who was not
served with a summons in the manner prescribed by statute is
void.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th
1426, 1444; see 2 Witkin, Cal. Procedure (6th ed. 2021)
Jurisdiction, § 119, p. 721.)
Under an interlocking set of statutes and judicial rules, a
party who has not been properly served (constructively or
personally), or who has been constructively served but not
received actual notice, has multiple avenues of relief from
judgment. Section 473.5, subdivision (a), provides that “[w]hen
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 [the party] in the action,” the party
may file a notice of motion to set aside the default “within a
reasonable time, but in no event exceeding . . . two years after
entry of a default judgment against” the party.
Notwithstanding its broad language, section 473.5 has long been
understood to specifically address the situation in which a party
is constructively served and the judgment is valid — as when a
summons is served on a competent member of the defendant’s
household pursuant to section 415.20 — but the defendant did
not receive actual notice. (See Anastos v. Lee (2004) 118
Cal.App.4th 1314, 1319; Rogers, supra, 216 Cal.App.3d at
pp. 1123–1124; 8 Witkin, Cal. Procedure, supra, Attack on
Judgment in the Trial Court, § 217, pp. 811–812.)

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Opinion of the Court by Jenkins, J.

Section 473(d) addresses the situation where the
judgment is “void,” such as when the defendant has not been
properly served. As earlier noted, where a section 473(d) motion
asserts that the attacked judgment, “ ‘though valid on its face,
is void for lack of proper service,’ ” some courts have, “ ‘by
analogy’ ” to section 473.5, set a “two-year outer limit” for
seeking relief. (Trackman, supra, 187 Cal.App.4th at p. 180.)
Rogers, supra, 216 Cal.App.3d at pp. 1120–1124 first announced
that rule relying on case law extending back into the 19th
century interpreting earlier versions of sections 473 and 473.5.
A number of courts have since followed Rogers. (See, e.g.,
Trackman, at p. 180; Gibble v. Car-Lene Research, Inc. (1998) 67
Cal.App.4th 295, 301, fn. 3 (Gibble); Schenkel v. Resnik (1994)
27 Cal.App.4th Supp. 1, 3–4.)
As these courts have articulated the rule, a defendant may
seek relief from default for improper service more than two
years after the default judgment as follows: First, a motion to
vacate based on the ground of extrinsic fraud or mistake may be
made at any time. (Gibble, supra, 67 Cal.App.4th at p. 314.)
Second, “ ‘[a] judgment or order that is invalid on the face of the
record . . . may be set aside on motion, with no limit on the time
within which the motion must be made.’ ” (Trackman, supra,
187 Cal.App.4th at p. 181.) This rule has also been applied when
uncontested extrinsic evidence shows that the defendant was
never properly served. (See Thompson v. Cook (1942) 20 Cal.2d
564, 569–570.) Third, a judgment or order valid on its face but
claimed to be void based on extrinsic evidence may be attacked
in an independent equitable action without time limits. (See
County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215,
1228 (Gorham); Groves v. Peterson (2002) 100 Cal.App.4th 659,
670, fn. 5 (Groves) [“an independent action in equity to set aside

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CALIFORNIA CAPITAL INSURANCE COMPANY v. HOEHN
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a judgment” for defective service of process “is not subject to a
time limit”].)
This summary highlights the narrowness of the issue
before us. The case law described above does not absolutely bar
a defendant from challenging a default judgment for improper
service two years after its entry when, as here, the invalidity
does not appear on the judgment’s face. 3 Rather, it limits a
defendant’s remedy in these circumstances to filing an
independent equitable action, prohibiting a motion in the
original action pursuant to section 473(d). (Groves, supra, 100
Cal.App.4th at p. 670, fn. 5; Dill v. Berquist Construction Co.,
supra, 24 Cal.App.4th 1426, 1444; 8 Witkin, Cal. Procedure,
supra, Attack on Judgment in Trial Court, § 216, p. 810. Thus,
although Hoehn cites a number of cases for the general
proposition that a void judgement may be attacked at any time
(see Schwab v. Southern California Gas (2004) 114 Cal.App.4th

3
To prove that a judgment is void on its face, the party
challenging the judgment is limited to the judgment roll, i.e., no
extrinsic evidence is allowed. (OC Interior Services, LLC v.
Nationstar Mortgage, LLC (2017) 7 Cal.App.5th 1318, 1327.) In
this case, the judgment roll itself reveals no invalidity. Leaving
papers with a competent member of a defendant’s household is
a proper means of effecting service. (See § 415.20, subd. (b); see
Trackman, supra, 187 Cal.App.4th at p. 185.) Proof of the
judgment’s invalidity comes from extrinsic evidence, i.e.,
Hoehn’s declaration that the summons was left with a person
who was not, in fact, a member of his household. Moreover,
California Capital’s successor presented circumstantial
evidence that Hoehn received the complaint, either from
Shannon Smith or by mail, and contacted California Capital’s
counsel shortly thereafter in April of 2010. Because the trial
court ruled Hoehn’s section 473(d) motion untimely, it did not
have cause to resolve the legal and factual issues arising from
Hoehn’s motion.

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1308, 1320; Heidary v. Yadollahi (2002) 99 Cal.App.4th 857,
862), that proposition is not in dispute. Rather, the question
here is a narrower one: whether those in Hoehn’s position may
bring a motion in the original action more than two years — in
his case almost nine years — after the default judgment’s entry,
or whether they must file an independent equitable action.
B. The Significance of the Rogers Rule
Although existing law allows defendants in Hoehn’s
position to seek invalidation of a default judgment through an
independent equitable action, the viability of the Rogers rule
(see Roger, supra, 216 Cal.App.3d at p. 1126), which precludes
him from filing a section 473(d) motion in the original action,
remains significant. According to amici curiae UC Berkeley
Center for Consumer Law & Economic Justice et al.,4 the filing
of a separate action is a more time- and resource-intensive
endeavor than the filing of a section 473(d) motion in the
original action.5 They further assert that the difficulty of
securing legal representation, due in part to the general
inability of lawyers to obtain an award of attorneys’ fees in these

4
Amici curiae are a group of 13 nonprofit organizations
representing low- and moderate-income consumers in debt
collection actions.
5
The added cost would include the filing fee for a complaint,
$435 as compared to $60 for the filing of a motion (see Superior
Court of California, Statewide Civil Fee Schedule (eff. Jan. 1,
2023) [as of November 12, 2024].) as
well as the cost of drafting the complaint. All Internet citations
in this opinion are archived by year, docket number, and case
name at .

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CALIFORNIA CAPITAL INSURANCE COMPANY v. HOEHN
Opinion of the Court by Jenkins, J.

types of cases, makes the filing of separate actions effectively
impossible for most people facing debt collection claims.
It has indeed been documented that a large proportion of
defendants in debt collection actions are not represented by
counsel. (See Holland, Junk Justice: A Statistical Analysis of
4,400 Lawsuits Filed by Debt Buyers (2014) 26 Loy. Consumer
L.Rev. 179, 208–210 [analysis of six studies finds that two
percent of debtors were represented by an attorney].) Moreover,
“the vast majority of consumers lose the vast majority of cases
by default the vast majority of the time.” (Id. at p. 179; see id. at
pp. 208–210 [finding in those studies 85 percent of debtors
served with complaints did not respond].) That high default rate
is likely attributable in part to inadequate and even fraudulent
service. The filing of false affidavits to conceal a lack of lawful
service has reportedly become a common practice among debt
collectors and has been given its own name — “sewer service” —
so denominated because “the server throws the documents
‘down the sewer’ and then falsifies its affidavit of service.” (Fed.
Trade Com., Repairing a Broken System: Protecting Consumers
in Debt Collection Litigation and Arbitration (July 2010) p. 8,
fn. 22, [as of November 12, 2024]; see Freeman v. ABC
Legal Services, Inc. (N.D.Cal. 2011) 827 F.Supp.2d 1065, 1068,
fn. 1 [defining sewer service as “ ‘failing to serve a debtor and
filing a fraudulent affidavit attesting to service so that when the
debtor later fails to appear in court, a default judgment is
entered against him’ ”].) Moreover, communities of color are
significantly more likely to be impacted by the questionable debt
collection practices of companies that specialize in buying and

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CALIFORNIA CAPITAL INSURANCE COMPANY v. HOEHN
Opinion of the Court by Jenkins, J.

collecting debts. (See Center for Responsible Lending, Court
System Overload: The State of Debt Collection in Cal. after the
Fair Debt Buyer Protection Act (2020) pp. 5–6.)
While these assertions were not tested in the trial court,
respondent does not contest them here. The significant concerns
they raise suggest why resolution of the question before us
matters. The real-world difficulties the Rogers rule may pose
for defendants attempting to obtain relief from unjust default
judgments, and the fact that such judgments may be all too
common, form the backdrop against which we consider Hoehn’s
request to repudiate that rule.
C. Is the Rogers Rule Compelled by Statute?
1. Historical Background
Section 473(d) states: “The court may, upon motion of the
injured party, or its own motion, correct clerical mistakes in its
judgment or orders as entered, so as to conform to the judgment
or order directed, and may, on motion of either party after notice
to the other party, set aside any void judgment or order.” An
understanding of how that language led to the Rogers rule and
its two-year time limit requires us to trace the statute’s history.
In California’s earliest days, “terms of court” limited the
time in which motions could be brought. Generally, no motion
could be entertained “to set aside a judgment on any ground,
including that of want of jurisdiction over the person of the
defendant in the action in which the judgment was entered,
after the expiration of the term in which it was entered.” (Bell
v. Thompson (1862) 19 Cal. 706, 708–709.) An exception to that
rule — appearing in section 68 of the Practice Act, the
predecessor to section 473 (Stats. 1851, ch. 5, § 68, p. 60) —
allowed parties to move to vacate a judgment within six months

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CALIFORNIA CAPITAL INSURANCE COMPANY v. HOEHN
Opinion of the Court by Jenkins, J.

from its entry in cases where the summons and complaint had
not been personally served. As the Bell court explained, even
though this provision was likely intended for situations in which
a party had been constructively but not personally served, i.e.,
where the judgment was valid, courts applied the same six-
month limitation when there was a motion to set aside a
judgment invalid because of a “want of service of summons.”
(Bell, at p. 708.) There was at the time no statutory
authorization for courts to vacate void judgments, but the
capacity to do so was considered part of courts’ inherent
authority. (See, e.g., Norton v. Atchison etc. R. R. Co. (1893) 97
Cal. 388, 396; see also In re Estrem’s Estate (1940) 16 Cal.2d 563,
571–572 [recognizing that courts’ authority to set aside void
judgments predated codification of that authority in section
473].)
California’s 1879 Constitution abolished terms of court
(see In re Gannon (1886) 69 Cal. 541, 544), but the term-of-court
era provided a kind of template for what followed. Section 473
was enacted in 1872, replacing section 68 of the Practice Act. In
relevant part, it provided an opportunity for relief from a default
judgment when “the summons in an action has not been
personally served on the defendant.” (1872 Code of Civil
Procedure, § 473.) Courts understood section 473, like section
68 of the Practice Act, to apply to a situation in which
constructive service had been properly made, and therefore the
default judgment was valid, but the service did not result in
actual notice. (See People v. One 1941 Chrysler 6 Tour Sedan
(1947) 81 Cal.App.2d 18, 21 (One 1941 Chrysler Sedan),
disapproved of on other grounds by People v. One 1941 Chevrolet
Coupe (1951) 37 Cal. 2d 283 [distinguishing motion under this
provision from motion to set aside void judgment].) Section 473

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CALIFORNIA CAPITAL INSURANCE COMPANY v. HOEHN
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was amended shortly after it was enacted to increase the time
to request relief from default judgment under these
circumstances from six months to one year. (See Code Amends.
1873–1874, ch. 383, § 60, p. 302.)
After terms of court were abolished, the rule developed
that when a party sought to invoke the courts’ inherent power
to vacate void judgments, “unless the judgment is void on the
face of the judgment-roll the court’s action to set it aside must
have been invoked within a reasonable time.” (Richert v. Benson
Lumber Co. (1934) 139 Cal.App. 671, 674, citing Smith v. Jones
(1917) 174 Cal. 513, 515.) As for what constituted a “reasonable
time,” the judicial consensus eventually settled on section 473’s
one-year limit. (Richert, at pp. 675–676; Vaughn v. Pine Creek
Tungsten Co. (1928) 89 Cal.App. 759, 761.) Courts did not
conclude that section 473 actually encompassed a motion to
vacate a void judgment for want of proper service, but they
reasoned that its one-year limitation should apply to such
claims “by analogy.” (Vaughn v. Pine Creek Tungsten Co., at
p. 761.)
The Legislature revamped section 473 in 1933, creating
two new sections. First, it added paragraph 4,6 which was

6
The reason for this addition was explained in In re
Estrem’s Estate, supra, 16 Cal.2d at page 572: “Prior to 1933 this
particular subdivision of 473 was in section 900a of the Code of
Civil Procedure, relating to justices’ courts. In that year as part
of extensive amendments made to various code sections relating
to the jurisdiction and procedure of the courts, the special
sections relating to the justices’ courts were repealed and their
contents incorporated in the general sections relating to
pleadings in civil actions (Code Civ. Proc., secs. 420 to 475),
which were at that time made applicable to all courts. (Code

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CALIFORNIA CAPITAL INSURANCE COMPANY v. HOEHN
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identical to the language currently found in section 473(d). 7
Second, it transferred the courts’ power to grant relief from
default judgments for lack of personal service from section 473
to new section 473a. (See One 1941 Chrysler Sedan, supra, 81
Cal.App.2d at pp. 21–22.) The consensus view among courts was
that “[t]he addition of paragraph 4 to section 473 in no way
changed the then existing law. It merely gave express statutory
recognition to an inherent power of the court. It in no way
changed the period within which a motion to set aside the void
judgment must be made. That period remained a reasonable
time, which, by analogy, [was] the one-year period [then]
contained in section 473a.” (One 1941 Chrysler Sedan, at p. 22;
see In re Estrem’s Estate, supra, 16 Cal.2d at p. 571.)
Section 473a was repealed and replaced by section 473.5
in 1969. (See Rogers, supra, 216 Cal.App.3d at p. 1123.) Section
473.5 extended the time a defendant could seek relief from a
default judgment where constructive service had not resulted in
actual notice from one year to two years after entry of judgment.
At issue in Rogers was a section 473 motion to relieve the
defendant of a default judgment on the grounds that he had not
been served and the return of service had been falsified. The
plaintiff argued that the one-year period that former section
473a set forth should continue to govern rather than the two-
year period that its successor, section 473.5, allowed. The

Civ. Proc., sec. 34.) Fear existed that unless the contents of
former section 900a were placed in some statute, courts not of
record might be held to be without those powers.”
7
In 1996, the Legislature inserted subdivision designations
into section 473 and paragraph 4 became subdivision (d). (Stats.
1996, ch. 60, § 1.)

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Rogers court observed that “[n]o reported decision has
considered whether the limitation period contained in section
473.5 governs by analogy a motion for relief from a default
judgment valid on its face but otherwise void because of
improper service.” (Rogers, supra, 216 Cal.App.3d at p. 1123.)
The court concluded that the analogy was apt. “Under plaintiffs’
position, a party constructively served has up to two years in
which to move for relief, yet a party not served at all only has
one year. . . .There is no valid reason to conclude that the
Legislature intended to treat those defendants properly served
more favorably than those not served at all.” (Rogers, at pp.
1123–1124.) Rogers therefore ruled that the defendant’s motion,
brought less than two years after entry of the default judgment,
was timely.
As noted, most California courts have followed Rogers’s
rule that a motion for relief from default judgment valid on its
face, but void for improper service, must be made within the two-
year period that section 473.5 sets forth. Although some courts
have observed generally that void judgments may be attacked
at any time (see Falahati v. Kondo (2005) 127 Cal.App.4th 823,
830), they have done so in cases in which the Rogers rule was
not at issue. (See Falahati, at p. 827 [motion to vacate default
judgment made 10 months after entry of judgment].)
The case that comes closest to departing from the Rogers
rule is Gorham, supra, 186 Cal.App.4th 1215. There, the
defendant moved to set aside a default judgment almost 10
years after its entry, and he established through declarations
and supporting documents that he had been incarcerated at the
time the proof of service falsely claimed that he had been
personally served at a former residence. Although the court
could have ruled for the defendant on grounds of extrinsic fraud,

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it instead relied on a broader constitutional principle: “Because
[the defendant] was never served with the complaint and
summons . . . the trial court never obtained personal
jurisdiction over him [citation], and the resulting default
judgment was, and is, therefore void, not merely voidable, as
violating fundamental due process.” (Gorham, at p. 1230.)
Gorham referenced the Rogers line of cases only obliquely (id. at
p. 1228) and did not discuss it.
2. Did the Legislature Incorporate or Reject the Rogers
Rule?
With this history in mind, we consider whether the
Legislature intended to impose a two-year limit on section
473(d) motions for judgments not void on their face. As noted,
section 473(d)’s text contains no hint of that, or any other, time
limitation. The absence of such language in light of the relevant
historical background gives rise to several possible inferences.
One inference is that the omission of any express time
limit in section 473(d) implies a legislative rejection of any such
limit. “ ‘In interpreting statutory language, a court must not
“insert what has been omitted, or . . . omit what has been
inserted.” (Code Civ. Proc., § 1858.).’ ” (Pieri v. City and County
of San Francisco (2006) 137 Cal.App.4th 886, 892.) Hoehn
contends that where, as here, the Legislature has chosen to
include a phrase in one provision of the statutory scheme (e.g.,
“two years” in section 473.5), but to omit it in another provision
(e.g., no time limitation in section 473(d)), courts should
presume that the Legislature did not intend for the language it
included in the first to be read into the second. The absence of
a time limit in section 473(d) is also notable because in a
different subsection of the very same statute, section 473,

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subdivision (b), the Legislature prescribed a six-month time
limit for defendants to obtain relief from default judgments
resulting from their own “mistake, inadvertence, surprise, or
excusable neglect.” (See Cornette v. Department of
Transportation (2001) 26 Cal.4th 63, 73 [“When one part of a
statute contains a term or provision, the omission of that term
or provision from another part of the statute indicates the
Legislature intended to convey a different meaning”]; Craven v.
Crout (1985) 163 Cal.App.3d 779, 783 [“Where a statute
referring to one subject contains a critical word or phrase,
omission of that word or phrase from a similar statute on the
same subject generally shows a different legislative intent”];
Campbell v. Zolin (1995) 33 Cal.App.4th 489, 497 [“Ordinarily,
where the Legislature uses a different word or phrase in one
part of a statute than it does in other sections or in a similar
statute concerning a related subject, it must be presumed that
the Legislature intended a different meaning”].)8
On the other hand, under a familiar canon of statutory
construction, legislative silence may indicate legislative
acquiescence. “ ‘[A] legislature is presumed to be aware of the
judicial interpretation of words dealing with the same or

8
California Capital contends that Hoehn did not preserve
for appeal the argument that we should abrogate the Rogers
rule, because Hoehn did not sufficiently develop that argument
in the trial court. The record proves otherwise. In reply to
California Capital’s assertion in the trial court that the section
473(d) motion was time-barred, Hoehn argued, albeit briefly,
that section 473(d)’s language does not support the Rogers rule
and that the analogy to section 473.5 is inapt. California Capital
cites no authority to support its contention that Hoehn’s
argument below is insufficient to preserve his right to make the
same argument in a more developed form on appeal.

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CALIFORNIA CAPITAL INSURANCE COMPANY v. HOEHN
Opinion of the Court by Jenkins, J.

analogous topics [and] . . . to intend the same well-settled
meaning of these words unless it expressly states otherwise.’ ”
(Korbel v. Chou (1994) 27 Cal.App.4th 1427, 1431.) Thus, when
the Legislature codified the courts’ inherent power to vacate
void judgments, it knew that courts had imposed by analogy the
one-year deadline for challenging default judgments when
constructive service did not result in actual notice, and it
arguably acquiesced in that rule. (See One 1941 Chrysler Sedan,
supra, 81 Cal.App.2d at p. 22 [codification of courts’ inherent
power to vacate void judgments did not alter the time limit for
bringing motions to invoke that power]; Rogers, supra, 216
Cal.App.3d at pp. 1123–1124.) Relatedly, what is now
designated as section 473, subdivision (b) was substantively
amended once, in 1991, since the Rogers rule was formulated,
while section 473(d) was left untouched. (Stats. 1991, ch. 1003,
§ 1.)
But another inference from legislative silence, and the one
we find the most plausible, is that the Legislature took no
position on the rule’s validity. As we have longed recognized,
legislative inaction supplies only a weak reed upon which to lean
in inferring legislative intent. (Naranjo v. Spectrum Security
Services, Inc. (2022) 13 Cal.5th 93, 116.) Legislative
acquiescence is especially unpersuasive when it is “invoked to
show the Legislature has acquiesced in judicial decisions
applying judicial doctrines . . . . When a precedent is challenged
as incorrectly extending such a doctrine, ‘it is primarily up to
the courts to reconsider its correctness.’ ” (People v. Brown
(2012) 54 Cal.4th 314, 327–328, citing People v. Superior Court
(2010) 48 Cal.4th 1, 21.) As noted, the deadline for bringing
motions to vacate judgments void for lack of proper service
originated as a rule that courts devised to regulate their

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CALIFORNIA CAPITAL INSURANCE COMPANY v. HOEHN
Opinion of the Court by Jenkins, J.

inherent power to vacate void judgments before that power was
codified. (See Vaughn v. Pine Creek Tungsten Co., supra, 89
Cal.App. at p. 761.) The fact that the Legislature eventually
codified that power in section 473(d), but not the judicially
imposed deadline, does not necessarily mean, as Hoehn argues,
that the Legislature rejected the deadline. However, the fact
that the judicial deadline remained uncodified, in contrast to the
statutory deadline provided in section 473, subdivision (b) and
section 473.5, gives rise to the inference that the Legislature
also did not intend to make the rule a statutory imperative
beyond the reach of judicial modification. In other words, courts,
as part of their inherent power to vacate void judgments, also
had the authority to make and modify rules governing the
exercise of that power. When the Legislature codified that
power in section 473(d), there is no indication that it intended
to preclude courts from continuing to exercise their rule-making
authority by reconsidering the correctness of time limits
judicially imposed on that power.
D. Should the Rogers Rule Stand?
The question thus arises: Should we uphold the rule that,
where extrinsic evidence is relied on to show that a judgment is
void for improper service, a section 473(d) motion must be filed
within two years of entry of judgment, or else the judgment may
be attacked only through an independent equitable action that
may be more costly and burdensome for the party seeking relief?
In order to answer that question, we consider possible
justifications for the rule.
First, as we have seen, courts devised the rule against the
background of early practice in this state, where motions
pertaining to a given case had to be made within the court’s

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CALIFORNIA CAPITAL INSURANCE COMPANY v. HOEHN
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term. After terms of court were abolished, courts continued to
require that motions to set aside default judgments be made
within a short time frame — a “reasonable time” — or otherwise
challenged in an independent action, at least when evidence was
required to demonstrate the judgment was void and evidentiary
questions might arise. (See Norton v. Atchison, etc. R. R. Co.,
supra, 97 Cal. at p. 392, [“Under our present system, terms of
court are abolished, and a motion to set aside a judgment would
have to be made within a reasonable time”].)
Second, in determining what constituted the outer
boundaries of a “reasonable time” in which to bring such a
motion, courts concluded that the motion was sufficiently
analogous to a motion made to vacate a valid judgment where
proper constructive service had not resulted in actual notice. As
noted, in Rogers, it was the defendant who benefited from, and
thus argued for, that rule. (Rogers, supra, 216 Cal.App.3d at
p. 1123.) Rogers was on firm ground in reasoning that a person
who received no notice of an action because of defective service
should not be in a worse position than a person who received no
notice after proper constructive service. But it is unclear why
the former should be treated the same as the latter. A person
moving for relief under section 473(d) seeks to invalidate a
judgment void for improper service, whereas a defendant
moving for relief under section 473.5 seeks to set aside a valid
judgment rendered without actual notice. In the latter case, the
Legislature’s express imposition of a deadline evidently
represents a balancing between the interests of a party subject
to a default judgment without actual notice and the interest in
the finality of a judgment for a party that furnished proper,
albeit constructive, notice. Notably, the balancing of interests
is different when a defendant’s due process rights are at stake

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CALIFORNIA CAPITAL INSURANCE COMPANY v. HOEHN
Opinion of the Court by Jenkins, J.

because the plaintiff has not properly served the defendant and
the court has never rightfully assumed jurisdiction over that
defendant. In the long line of appellate decisions leading up to
the present Court of Appeal opinion, no convincing justification
has been given for why these fundamentally dissimilar
situations should be treated alike.
A third justification for the Rogers rule, implicit in the case
law, is the perceived limitations of the motion procedure as a
forum for litigating evidentiary issues. A line of cases has held
that denial of an earlier motion to vacate a default judgment
does not collaterally estop a subsequent independent equitable
action seeking the same relief because generally “in the motion
procedure the moving party is limited to presenting ex parte
affidavits of voluntary witnesses, unless the trial court in its
discretion permits a greater latitude. The party does not have
the right to produce oral testimony or to compel witnesses to
attend for deposition or cross-examination. In other words, the
motion procedure does not involve all the aspects of full
litigation.” (Grove, supra, 100 Cal.App.4th at pp. 667–668; see
Cowan v. Cowan (1946) 72 Cal.App.2d 868, 872 [discussing the
disadvantages of proceeding by motion to vacate a default
judgment in a divorce case]; Estudillo v. Security Loan & Trust
Co. (1906) 149 Cal. 556, 564.)
Thus, from early on, courts, after a brief grace period,
disapproved of proceeding by motion to vacate a default
judgment when the judgment’s invalidity depended on evidence
outside the judgment roll that might require an adversarial
proceeding. In People v. Harrison (1890) 84 Cal. 607, 607–608,
the defendant sought, 16 years after the judgment’s entry, to
vacate the judgment for lack of personal service and other
alleged defects in service that were not apparent on the

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CALIFORNIA CAPITAL INSURANCE COMPANY v. HOEHN
Opinion of the Court by Jenkins, J.

judgment’s face. The court stated: “ ‘We know of no provision of
law which can be held to authorize the vacation of a judgment
on a mere motion after so long a time.’ ” (Id. at p. 608.) A motion
seeking to vacate a judgment void on its face, on the other hand,
might be entertained by motion at any time because it would not
involve an adversarial evidentiary hearing. (See, e.g., People v.
Greene (1887) 74 Cal. 400, 402–403, 405 [where it is evident
from the judgment roll that the defendant was not personally
served, and there was no affidavit showing publication of the
summons, the judgment may be vacated by motion 11 years
after default judgment].)
Nonetheless, the cases recognize that motion proceedings
to vacate a default judgment may be given collateral estoppel
effect when the trial court in its discretion allows a hearing on
the motion and permits oral testimony. (Groves, supra, 100
Cal.App.4th at p. 668 [citing “(Darlington v. Basalt Rock Co.
(1961) 188 Cal.App.2d 706, 709, 710, [10 Cal. Rptr. 556] [judge
held hearing, made clear the court did not restrict the party to
affidavits, interrogated a witness, and gave party full
opportunity to develop the issues by oral testimony]; Preston v.
Wyoming Pac. Oil Co. (1961) 197 Cal.App.2d 517, 527, [17 Cal.
Rptr. 443] [trial court held hearings in which much oral
testimony and other evidence was received]; see Sarten v.
Pomatto (1961) 192 Cal.App.2d 288, 300–301, [13 Cal. Rptr. 588]
[dictum, recognizing principle that ‘where the trial of an issue
on a motion is as comprehensive as the trial of the same issue in
a suit’ collateral estoppel would apply])”].)
The procedural limitations on motions do not credibly
justify a categorical requirement that a defendant seeking relief
from a default judgment valid on its face must, after two years,
seek relief via an independent equitable action rather than a

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CALIFORNIA CAPITAL INSURANCE COMPANY v. HOEHN
Opinion of the Court by Jenkins, J.

section 473(d) motion. Such a requirement would be arbitrarily
over-inclusive. Given the limited nature of the inquiry — was
the defendant properly served — there will be some cases, and
perhaps many, that may be tried on affidavits or declarations
alone, and may be as effectively adjudicated by motion three
years after entry of the default judgment as after one year. (See,
e.g., Gorham, supra, 186 Cal.App.4th at pp. 1222, 1230 [proving
residence contrary to the affidavit of service almost 10 years
after entry of the default judgment].) And there are some
motions brought beyond the two-year limit as to which trial
courts will exercise their discretion to hold hearings and allow
oral testimony. There is no reason for compelling defendants in
either context to proceed by independent equitable action rather
than by motion in the original action simply because two years
have passed from entry of default judgment.9
We do not lightly part ways with longstanding Court of
Appeal precedent. But we conclude that such a step is
appropriate in this case. The Rogers rule lacks either a

9
We note that there are varying practices regarding
whether trial courts will allow hearings and oral testimony in
support of motions. (See Rohrbasser v. Lederer (1986) 179
Cal.App.3d 290, 299 [noting at the time that motions practices
in one district of the Los Angeles County Superior Court did not
allow for oral testimony].) Nothing in this opinion requires trial
courts to alter how they manage their law and motion docket.
Nonetheless, a proper factor for courts to consider in
determining whether to permit oral testimony in support of a
section 473(d) motion is the additional burden the defendant
will face if required to file an independent equitable action.

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CALIFORNIA CAPITAL INSURANCE COMPANY v. HOEHN
Opinion of the Court by Jenkins, J.

statutory basis or a clear and credible rationale.10 We hold that
a section 473(d) motion to vacate a judgment that is void for lack
of proper service is not subject to the judicially imposed two-year
limitation.11
The right of civil defendants to proper service is essential
to their basic due process right to notice and to their ability to
defend against liability claims that may lead to unwarranted
financial hardship. (See Peralta, supra, 485 U.S. at p. 84.) If,
as Hoehn asserts in his declaration, he first learned of this

10
We also note that Federal Rules of Civil Procedure, rule
60(b)(4), contains no time limitation for making motions to set
aside a void judgment. (Bell Helicopter Textron, Inc. v. Islamic
Republic of Iran (D.C. Cir. 2013) 734 F.3d 1175, 1180 & fn. 1
[citing cases].) And under federal law, as under California law,
improper service may render a default judgement void. (Bell v.
Pulsman Safety Equipment Corp. (8th Cir. 2018) 906 F.3d 711,
714–715.) Some states have adopted the equivalent of federal
Rule 60(b)(4), and courts in those states have held that motions
for relief from void default judgments may be brought at any
time. (See, e.g., Turner v. Turner (Tenn. 2015) 473 S.W.3d 257,
277–279 [motion eight years after default judgment was timely];
Greisel v. Gregg (Fla.Dist.Ct.App. 1999) 733 So.2d 1119, 1121
[vacating almost seven-year-old default judgment for improper
service].)
11
We note some courts require defendants seeking to vacate
a default judgment to act with reasonable diligence after
learning of that judgment. (See, e.g., Kramer v. Traditional
Escrow, Inc. (2020) 56 Cal.App.5th 13, 37 [“diligence is
measured from when a party discovers the default or default
judgment”].) Other courts have cast doubt on the imposition of
such a requirement. (See Gorham, supra, 186 Cal.App.4th at p.
1229 [“ ‘[w]hat is initially void is ever void and life may not be
breathed into it by lapse of time’ ”].) We need not resolve that
issue here. According to Hoehn’s declaration, he unquestionably
showed reasonable diligence by challenging the default
judgment within three months after learning of it.

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CALIFORNIA CAPITAL INSURANCE COMPANY v. HOEHN
Opinion of the Court by Jenkins, J.

lawsuit when his wages were garnished almost nine years after
a default judgment had been entered, this case well illustrates
the fundamental injustice that results from the lack of notice.
Moreover, as noted, requiring the filing of an independent
equitable action in order to vacate a default judgment for lack of
proper service has the potential for adding additional costs and
burdens on defendants. (See ante, at pp. 8–9.) Procedural
hurdles that are unnecessary to the fair adjudication of default
judgments should not stand in the way of the vindication of a
defendant’s due process rights. Because the rule in Rogers that
section 437.5’s two-year time limit applies to section 473(d)
motions to vacate is such a hurdle, we abrogate the rule and
disapprove of Rogers v. Silverman, supra, 216 Cal.App.3d 1114
and its progeny.
E. Extrinsic Fraud and Mistake
As noted, Hoehn also claims the default judgment should
be vacated on the grounds of “extrinsic fraud or mistake.” The
Court of Appeal parsed that term and declined to consider
Hoehn’s claim of “extrinsic mistake,” finding that he “did not
clearly advance” that theory in the trial court. Considering the
truncated claim of “extrinsic fraud” alone, the Court of Appeal,
following one line of appellate cases, held that a defendant
seeking relief from a default judgment on that basis must
demonstrate the plaintiff’s “inequitable conduct,” some
intentional effort to “lull [the defendant] into a state of false
security.” (Gibble, supra, 67 Cal.App.4th at p. 314.) It found no
such showing in the present case.
We agree that Hoehn has not shown, and indeed does not
claim, inequitable conduct on the part of California Capital or
its successor. We disagree, however, with California Capital’s

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CALIFORNIA CAPITAL INSURANCE COMPANY v. HOEHN
Opinion of the Court by Jenkins, J.

assertion that Hoehn waived or forfeited the claim of “extrinsic
mistake.” In his trial court briefing, he asserted that the default
judgment was “void due to extrinsic fraud or mistake.” (Italics
added.) Although he used the term “extrinsic fraud” more
frequently in his trial court brief, it is clear from the context that
he also used the general term “extrinsic fraud” to encompass
both extrinsic fraud and extrinsic mistake.
It is unclear whether the Court of Appeal in the present
case would have reached the same conclusion had it considered
the merits of Hoehn’s “extrinsic fraud or mistake” claim. Some
courts have interpreted the category of “extrinsic fraud or
mistake” expansively. (See Munoz v. Lopez (1969) 275
Cal.App.2d 178, 181 [“the terms are given a very broad meaning
which tends to encompass all circumstances that deprive an
adversary of fair notice of hearing whether or not those
circumstances would qualify as fraudulent or mistaken in the
strict sense”].) We express no opinion how or whether Hoehn’s
extrinsic mistake claim is substantively distinct from his claim
to vacate a void judgment for lack of proper service under section
473(d). In any case, Hoehn is free to raise in the Court of Appeal
the issue of whether the default judgment at issue here is void
due to “extrinsic fraud or mistake.”
III. DISPOSITION
The Court of Appeal upheld the trial court’s judgment that
Hoehn’s section 473(d) motion to set aside the default judgment
was time-barred. We reverse the Court of Appeal’s judgment
and remand to that court for proceedings consistent with this
opinion.

25
CALIFORNIA CAPITAL INSURANCE COMPANY v. HOEHN
Opinion of the Court by Jenkins, J.

JENKINS, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
EVANS, J.

26
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.

Name of Opinion California Capital Insurance Co. v. Hoehn
__________________________________________________________

Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published)
Review Granted (unpublished) XX NP opn. filed 10/19/22 – 3d Dist.
Rehearing Granted
__________________________________________________________

Opinion No. S277510
Date Filed: November 18, 2024
__________________________________________________________

Court: Superior
County: Placer
Judge: Michael W. Jones
__________________________________________________________

Counsel:

Kazan, McClain, Satterley & Greenwood and Denyse F. Clancy for
Defendant and Appellant.

California Western School of Law, William J. Aceves; UC Irvine,
School of Law and Paul L. Hoffman for Erwin Chemerinsky, Pooja
Dadhania, David Freeman Engstrom, Kenneth S. Klein, Mark
Rosenbaum and Gary C. Williams as Amici Curiae on behalf of
Defendant and Appellant.

Alan Charles Dell’Ario for Consumer Attorneys of California and
American Association for Justice as Amici Curiae on behalf of
Defendant and Appellant.

David S. Nahmias, Seth E. Mermin; Noah Zinner, Katherine R. Sass;
and Leigh E. Ferrin for the UC Berkeley Center for Consumer Law &
Economic Justice, Bay Area Legal Aid, OneJustice, Community Legal
Aid SoCal, East Bay Community Law Center, Impact Fund, Legal Aid
Association of California, Legal Assistance for Seniors, Los Angeles
Center for Law and Justice, Mental Health Advocacy Services,
Neighborhood Legal Services of Los Angeles County, Public Counsel
and Western Center on Law and Poverty as Amici Curiae on behalf of
Defendant and Appellant.

Edmond B. Siegel & Associates, Edmond B. Siegel; Andrew Altholz;
Law Offices of Steven J. Horn and Steven J. Horn for Plaintiff and
Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):

Denyse F. Clancy
Kazan, McClain, Satterley & Greenwood, A Professional Law
Corporation
55 Harrison Street, Suite 400
Oakland, CA 94607
(510) 302-1000

Steven J. Horn
Law Offices of Steven J. Horn
5737 Kanan Road, #722
Agoura Hills, CA 91301
(818) 409-6055

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10742571. Public record. Not legal advice.