NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BOREN, P.J.

Three months after a default was entered against her, Hui Wang asked the trial court to quash service of the summons and for relief from default. (Code Civ. Proc., §§ 418.10, 473.)1 The trial court denied both motions. We affirm.

FACTS

Juergen Votteler filed this lawsuit in July 2007 against Finbar Securities Corp. (Finbar) and its president Robert Tringham. Votteler, a German citizen, entered a "wealth management agreement" with Finbar, and wired Finbar 1.8 million euros based on defendants' promise of a high-yield, no-risk investment in bonds, notes, precious metals, derivatives and other instruments. Defendants did not tell Votteler that they were being investigated by the Internal Revenue Service and were the subjects of a forfeiture action arising from business fraud.

Defendants' representations about Votteler's investment proved to be false. Finbar was not a licensed securities dealer and did not open an investment account for Votteler. Votteler attempted to retrieve his money from defendants, without success. He then sued, alleging theories of fraud, conversion, breach of contract, recission, unjust enrichment, and seeking the imposition of a constructive trust, the appointment of a receiver, and an injunction.

On September 17, 2007, Votteler amended his complaint to designate appellant Hui Wang (a.k.a. Cindy Tringham) as a defendant. Votteler filed a proof of service showing that the summons, complaint, and 11 other documents were personally served on Wang, at her residence, on September 18, 2007. The proof of service was mailed to Wang on October 11, 2007. On October 23, 2007, Votteler filed and served a request for entry of default against Wang. Wang answered the complaint on November 5, 2007.

On January 23, 2008, Wang filed motions (1) to vacate entry of default and (2) to quash service of summons. She argued that she was improperly served, that the default was entered as a result of mistake, inadvertence, surprise or excusable neglect, and that she diligently sought relief from default. In support of her motion, Wang declared that she is an immigrant from China with "rather limited" English skills. She first learned of this lawsuit on October 31, 2007, when her husband, Robert Tringham, informed her that a default was entered against her.2 Wang immediately hired a lawyer, who filed an answer on her behalf

Wang states, "I later learned that a process server had come to our house in the fall of 2007 and had thrust some papers at our son without much of an explanation and a rude attitude. Our son apparently left the papers in a stack of papers in the house that still has not been found." Wang's son is 14 years old. Wang did not seek relief from default for three months because the parties were engaged in settlement negotiations. Wang does not explain why she failed to react to the proof of service of summons that was mailed to her on October 11, 2007, 12 days before her default was entered.

Robert Tringham submitted a declaration in support of Wang's motion. He avers that he first learned of the entry of default against Wang on October 31, 2007, and encouraged Wang to hire a lawyer and file an answer. Tringham stated that "apparently a process server had come to our house in the fall of 2007 and had thrust some papers at our son without much of an explanation and a rude attitude. Our son apparently left the papers in a stack of papers that still has not been found."

Counsel for Wang and Tringham declared that he first learned of Wang's default on October 31, 2007, and immediately informed Tringham. He asked Votteler's attorney to set aside the entry of default, but was rebuffed. Defense counsel waited until settlement negotiations broke down before filing Wang's motion for relief.

In opposition, Votteler asserted that Wang's motion to quash is untimely. Wang made a general appearance in the action by filing an answer and an opposition to Votteler's request for a writ of attachment, thereby waiving any defect in service of process.3 Votteler argued that Wang did not establish grounds for relief from default because there was no mistake, inadvertence, surprise or excusable neglect. Wang could not have been surprised by her inclusion in this lawsuit, because the evidence shows that Finbar transferred Votteler's money to Wang.4 Finally, Votteler contended that Wang did not diligently seek relief.

The trial court conducted a hearing on Wang's motion on February 26, 2008. The court denied Wang's motion to quash and her motion to set aside entry of default judgment. The court entered a default judgment for $3,419,387 against Wang and her codefendants on July 23, 2008. Appeal was taken from the judgment on September 19, 2008.

DISCUSSION

1. Wang's Bankruptcy Proceeding

After filing her notice of appeal in this case, Wang filed a bankruptcy petition. The petition automatically stayed all state court proceedings. (11 U.S.C. § 362(a).) Votteler asked the bankruptcy court for relief from the automatic stay. On April 8, 2010, the bankruptcy court granted Votteler's request and lifted the stay. (Id., subd. (d).) On April 22, 2010, this Court determined that it may proceed with the appeal.

2. Motion to Quash Service of the Summons and Complaint

Wang moved to quash, claiming that service of process was improperly made. A motion to quash must be brought on or before the last day to answer or demur, "or within any further time that the court may for good cause allow . . . ." (§ 418.10, subd. (a).) Upon denial of the motion to quash, a defendant has 30 days to petition for a writ of mandate. (Id., subd. (c).) Mandamus is the correct way to seek review when the trial court refuses to quash service of summons. (Owens v. Superior Court (1959) 52 Cal.2d 822, 827; Northern Natural Gas Co. v. Superior Court (1976) 64 Cal.App.3d 983, 995.)

Wang's attempted appeal fails for three distinct reasons. First, she did not file the motion to quash on or before the last day to plead, and did not make a showing of good cause in the trial court to file a belated motion. (§ 418.10, subd. (a).) Second, Wang did not file a timely petition for writ of mandate after the trial court denied her motion to quash. The availability of the interlocutory appellate remedy for reviewing motions to quash precludes review of the order after appeal from the judgment: mandamus is the exclusive remedy. (McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252, 257; State Farm General Ins. Co. v. JT's Frames, Inc. (2010) 181 Cal.App.4th 429, 437-439.)

Finally, even if we treat the appeal as a writ petition, Wang waived her jurisdictional challenge by filing an answer to the complaint before moving to quash. A defendant may move to quash and "simultaneously" answer the complaint. (§ 418.10, subd. (e).) This means that "a defendant may move to quash coupled with any other action without being deemed to have submitted to the court's jurisdiction." (Roy v. Superior Court (2005) 127 Cal.App.4th 337, 345, italics omitted.) By contrast, a defendant may not "take action that constitutes a general appearance and then negate the effect of that action by a subsequent motion to quash." (Factor Health Management v. Superior Court (2005) 132 Cal.App.4th 246, 251-252.) Answering the complaint constitutes a general appearance. (§ 1014.) Wang submitted to the court's jurisdiction by answering the complaint on November 5, 2007, and by opposing Votteler's application for a writ of attachment. Wang's motion to quash in January 2008 did not negate the effect of her general appearance.

3. Motion for Relief from Default

The denial of a motion to vacate entry of default may be reviewed on appeal from the default judgment. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981; Scognamillo v. Herrick (2003) 106 Cal.App.4th 1139, 1146.) To qualify for relief from default under section 473, the defendant "must act diligently in seeking relief and must submit affidavits or testimony demonstrating a reasonable cause for the default." (Elston v. Turlock (1985) 38 Cal.3d 227, 234.) A ruling on a motion for relief under section 473 will not be disturbed absent a clear abuse of discretion. (Id. at p. 233; Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.) The court's exercise of discretion is tempered by the rule that "the law strongly favors trial and disposition on the merits, [so] any doubts in applying section 473 must be resolved in favor of the party seeking relief from default." (Elston v. Turlock, supra, 38 Cal.3d at p. 233.)

a. Diligence

A motion for relief from default must be made within "a reasonable time, in no case exceeding six months." (§ 473, subd. (b).) What is "reasonable" depends upon the circumstances of each particular case. (Schwartz v. Smookler (1962) 202 Cal.App.2d 76, 81.) "Diligence is an essential ingredient of a motion for relief under section 473." (Ludka v. Memory Magnetics International (1972) 25 Cal.App.3d 316, 321.) The trial court may deny a motion under section 473 if a party waits three months before seeking relief, absent a satisfactory explanation for the delay. For example, it is appropriate to deny relief where there is "an unexplained delay" of three months "after full knowledge of the entry of the default." (Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 529. Accord: Ludka v. Memory Magnetics International, supra, 25 Cal.App.3d at pp. 321-322; Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1184.)

Wang contends that she diligently sought relief. She immediately hired an attorney, who filed an answer and asked plaintiff's counsel to set aside the default. Once it became clear that the dispute would not settle, Wang filed her motion for relief, exactly three months after default was entered. In his appellate brief, Votteler argued, without proof, that "[a]t no time has Wang ever sought to enter into settlement discussions with plaintiff." This argument conflicts with the declaration of Votteler's attorney, who states that "[s]ettlement negotiations with the defendants have been unsuccessful because the defendants have repeatedly refused to fulfill promises made to plaintiff to fund a settlement." (Italics added.) Wang is one of "the defendants," so the declaration implicitly acknowledges that plaintiff's counsel conducted unsuccessful settlement negotiations with Wang. Counsel does not aver that the settlement discussions excluded Wang.

Under the circumstances, Wang acted diligently. She filed an answer 13 days after the default, but waited until settlement negotiations broke down before seeking relief from default, thereby conserving the litigants' and judicial resources. Plaintiff presented no proof that Wang was excluded from settlement negotiations. Wang's motion for relief, filed three months after the default, was made within "a reasonable time" under section 473.

b. Grounds for Vacating the Default

The grounds for Wang's motion were that (1) she was improperly served so the court lacks personal jurisdiction, and (2) the default was entered as a result of mistake, inadvertence, surprise, or excusable neglect.

1. Improper Service

Under section 473, the court may set aside a default judgment that "`is valid on its face, but void as a matter of law,'" because the defendant was not served with the summons and complaint in a manner that satisfies statutory standards. (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1200; § 473, subd. (d).) In this instance, the proof of service filed with the court shows that the summons, complaint, the amendment to the complaint, and 11 additional documents were personally delivered to Wang at her residence, at 10:37 a.m. on September 18, 2007. Hand delivery of a copy of the summons and the complaint to the defendant is a valid method of service. (§ 415.10.) After the proof of service was filed with the court, a copy was sent to Wang's residence.

Filing a proof of service creates a rebuttable presumption that service was proper. (Hearn v. Howard, supra, 177 Cal.App.4th at p. 1205; Floveynor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.) The "return" of the proof of service "presumptively establishes the fact of proper service, but it may be impeached and the lack of proper service shown by contradictory evidence." (M. Lowenstein & Sons, Inc. v. Superior Court (1978) 80 Cal.App.3d 762, 770, disapproved on other grounds in Johnson & Johnson v. Superior Court (1985) 38 Cal.3d 243, 255, fn. 7).) Wang attempted to impeach the proof of service by declaring that the summons and complaint were handed to her 14-year-old son. Robert Tringham offered a similar declaration. Substitute service made at a dwelling requires that documents be given to a household member who is at least 18 years old. (§ 415.20, subd. (b).)

The trial court did not believe Wang or Tringham, and did not find them to be credible witnesses. Their declarations were speculative and not based on personal observation. Instead, the court chose to believe the statement of the process server, made under penalty of perjury, that he hand-delivered the summons and complaint to Wang personally. When conflicting evidence is presented, the trial court's factual findings are entitled to deference. (Solv-All v. Superior Court (2005) 131 Cal.App.4th 1003, 1007; Goya v. P.E.R.U. Enterprises (1978) 87 Cal.App.3d 886, 891.) We do not reweigh witness credibility on appeal. "If the evidence gives rise to conflicting inferences, one of which supports the trial court's findings, we must affirm." (Milton v. Perceptual Development Corp. (1997) 53 Cal.App.4th 861, 867.) Accordingly, we affirm the trial court's determination that the summons and complaint were properly served on appellant Wang, personally, at her residence.

2. Mistake, Surprise, Inadvertence or Excusable Neglect

The moving party bears the burden of showing that a default was taken through mistake, inadvertence, surprise or excusable neglect. Without this showing, the court has no discretion to grant relief. (Schwab v. Southern California Gas Co. (2004) 114 Cal.App.4th 1308, 1319.) Wang asked to vacate the default because (1) she promptly filed an answer upon learning of the default, and her filing fees were accepted by the court; (2) she had no reason to know that she would be named as a party to this lawsuit, and "because of her Chinese background [had] no basis to truly understand the significance or ramifications of the pleadings;" and (3) she filed a motion for relief as soon as it was clear that the case would not settle.

Two of Wang's three points address her diligence. Wang's acts answering the complaint 13 days late and filing for relief after three months do not explain why she failed to timely answer the complaint in the first place. Wang's only real attempt to explain why she was surprised or neglectful is that she is foreign born, did not understand the ramifications of the summons and complaint that were served upon her, and did not expect to be named as a defendant.

The trial court disbelieved Wang's explanations. Wang states in her brief that she "was not involved in any material aspect of the business of Tringham or Finbar." Despite her purported lack of involvement with Finbar, Wang received nearly half a million dollars from Finbar. It is disingenuous for Wang to be "surprised" by her inclusion as a defendant when she was, in the words of the trial court, a "conduit" for absconding with Votteler's investment money. Tringham was already under investigation by the Internal Revenue Service at the time that Votteler wired money to Finbar. Receiving and cashing corporate checks signed by a spouse or fiancé who is under investigation for business fraud would raise a red flag for any prudent person. Finally, Wang's immigrant status is not compelling. Wang cites no authority for the notion that being foreign born excuses a failure to answer a lawsuit. She does not aver that she was unable to read the summons and complaint, or unable to ask Tringham or a lawyer what the documents meant, and the record shows that she was able to assist her attorney and sign declarations written in English.

Vague assertions that a defendant did not really understand what to do with the documents served do not justify relief from default. A defendant who fails to read a complaint is grossly negligent; a defendant who reads the complaint and disregards its allegations is careless and indifferent: in either event, relief should be denied. (Davis v. Thayer (1980) 113 Cal.App.3d 892, 906.) The trial court could reasonably conclude that Wang was properly served, but chose to ignore the summons in hopes that Tringham and Finbar would reach a settlement with Votteler.5 This unfulfilled hope is not a sound basis for granting relief from default.

DISPOSITION

The judgment is affirmed.

We concur.

ASHMANN-GERST, J.

CHAVEZ, J.