Opinion

On the motion of Western Pioneer Insurance Company (“Western Pioneer”), the superior court ordered a previously entered “consent” judgment for a total of $425,000, in favor of plaintiffs Pauline R. Villarruel, Richard Villarruel, Ophelia Villarruel and Anna-maria Villarruel, and against defendants Ofelia Arreola de Avelos who was sued as Deavalos Arreola, Manuela Arreola, and Elias Arreola R. who was sued as Elias Rodriguez Arreola (hereinafter “Elias”), vacated and set aside. The latter three named plaintiffs were minors, suing through Pauline R. Villarruel, their guardian ad litem. Pauline R. Villarruel alone, apparently in her individual capacity, has appealed from the order, and from an order permitting Western Pioneer to intervene in the action.

In reviewing the' propriety of an order granting such a motion to set aside a judgment, we must assume in support of the order that the superior court resolved all evidentiary conflicts in favor of the moving party. (Nestle v. City of Santa Monica, 6 Cal.3d 920, 925 [ 101 Cal.Rptr. 568 , 496 P.2d 480 ]; Turley v. Turley, 254 Cal.App.2d 169, 172 [ 61 Cal.Rptr. 673 ]; Warren v. Warren, 120 Cal.App.2d 396, 400 [ 261 P.2d 309 ].)

Viewing the relevant evidence before the superior court on the motion in this light, we find the following.

Defendant Elias in the early morning hours was driving an automobile with his friend Sixto Villarruel, aged 42, as a passenger. He collided with a legally parked vehicle, proximately causing injuries to the passenger which resulted in his death. The automobile was being used by Elias with the express permission of its owners, his sisters, defendants Manuela Arreola and Ofelia Arreola de Avelos.

Allstate Insurance Company (“Allstate”) was the insurer of the automobile driven by Elias at the time of the accident; its liability was limited to $15,000. Western Pioneer was the insurer of another automobile which was owned by Elias; its policy also had a liability limitation of $15,000.

The several plaintiffs are the surviving spouse and children of the deceased Sixto Villarruel. They employed an attorney, Mr. Jesse W. Jack, to represent them in a wrongful death action. The action was commenced May 23, 1974, against the offending automobile’s driver, Elias, and its owners, Manuela Arreola and Ofelia Arreola de Avelos. The total amount of damages sought was $252,310.63.

Allstate, represented by Mr. James Perry, appeared in the action on behalf of all defendants. It promptly agreed to settle with the plaintiffs for the full amount of its policy’s coverage, $15,000. Mr. Jack, for the plaintiffs, then made demand on Western Pioneer for settlement in the amount of its policy’s limitation of $15,000. That company recognized that it had insured Elias’ automobile, and that ordinarily it would be liable for injuries negligently and proximately caused by him while driving an automobile. But it contended that since the automobile in question was owned by Ofelia Arreola de Avelos, “a relative or a member of his household,” the Western Pioneer policy by its express terms did not cover the subject accident. It also contended “that the vehicle driven by its insured at the time of the accident would not qualify as a temporary substitute automobile under the terms of the policy.”

On May 2, 1975, Western Pioneer’s attorney, Mr. James C. Jones, Jr., mailed to the stated addressees, the following letter:

The following declaration of Western Pioneer’s attorney, Mr. Jones, was also before the superior court at the hearing of Western Pioneer’s motion:

Upon Mr. Allard’s arrival in court toward the end of the “trial” the following ensued:

Mr. Allard took no further part in the proceedings.

A consent judgment, as previously indicated, was thereupon entered in favor of the several plaintiffs for amounts totaling $425,000.

Thereafter the plaintiffs entered into a “Covenant Not to Execute” against the defendants which, among other things contained the following recital:

In consideration of the “Covenant Not to Execute,” the defendants then “sold, assigned and set over to plaintiffs all of their rights, titles and interests in and to their cause of action” against Western Pioneer “for bad faith in refusing to settle for policy limits.” This was followed by plaintiffs’ separate action by which, under the well-known rule of Crisci v. Security Ins. Co., 66 Cal.2d 425 [ 58 Cal.Rptr. 13 , 426 P.2d 173 ], they sought $425,000 against Western Pioneer “for bad faith in refusing to settle for policy limits.” That action is presently pending.

From the foregoing evidence the trial court reasonably could find, and presumably did find (see Nestle v. City of Santa Monica, supra, 6 Cal.3d 920 ; Turley v. Turley, supra, 254 Cal.App.2d 169 ; Warren v. Warren, supra, 120 Cal.App.2d 396 ), that the $425,000 “consent” judgment, in an amount almost double that prayed for, had been entered without notice to Western Pioneer or its attorney, and contrary to an agreement with plaintiffs’ attorney, Mr. Jack. The obvious purpose could reasonably be considered an unconscionable abuse of, or attempt to abuse, the rule of Crisci v. Security Ins. Co., supra, 66 Cal.2d 425 . Under the circumstances it will also be presumed that the trial court found the judgment to have been entered as a result of mistake, or collusion, or fraud. And it is patent that the interests of Western Pioneer, although a stranger to the action, were substantially and intentionally affected by the judgment.

It is settled law that in such a context an adversely affected party, although a stranger to the action, will have standing according to principles of equity to proceed to have the judgment so obtained set aside.

The pertinent rule was announced in Consolidated Rock Prod. Co. v. Higgins, 54 Cal.App.2d 779, 781 [ 129 P.2d 929 ], as follows:

The rule has been variously stated: “It is the general rule that a judgment obtained in fraud of the interests of a third person is not binding upon him” (Babbitt v. Babbitt, 44 Cal.2d 289, 293 [ 282 P.2d 1 ]); .. judgments ‘procured through fraud of either of the parties, or by the collusion of both for the purpose of defrauding some third person’ ” may be “ ‘wholly or partly avoided’ by strangers to the record” (Bennett v. Wilson, 133 Cal. 379, 382 [ 65 P. 880 ]); “The remedy is available not only to a party who by reason of the extrinsic fraud has been deprived of an opportunity to present his case or obtain a fair adversaxy proceeding . .. but also to a stranger whose interests have been adversely affected by the judgment” (Hickey v. Roby, 273 Cal.App.2d 752, 768 [ 77 Cal.Rptr. 486 ]); “A person, not a party to the action in which the extrinsic fraud is perpetrated, who is adversely affected by the judgment, may bring an action in equity to vacate it” (Harada v. Fitzpatrick, 33 Cal.App.2d 453, 459 [ 91 P.2d 941 ]). (See also Bernhard v. Waring, 213 Cal. 175, 181 [ 2 P.2d 32 ]; Anderson v. Bank of Lassen Co., 140 Cal. 695, 698-699 [ 74 P. 287 ]; Associated Oil Co. v. Mullin, 110 Cal.App. 385, 389 [ 294 P. 421 ]; Bowman v. Bowman, 97 Cal.App. 613, 624 [ 275 P. 1023 ].)

The right of a third party to set aside such a judgment does not necessarily depend upon extrinsic fraud; it will also rest upon extrinsic mistake, which may have existed in the case at hand, and upon which the trial court’s order setting aside the judgment may have rested. “A party or one in privily with him who has been prevented from obtaining a fair adversary hearing through extrinsic fraud or mistake may bring an equitable action to vacate the judgment. ... A stranger may maintain such an action if his interests have been adversely affected by the judgment.” (People ex rel. Public Util. Com. v. Ryerson, 241 Cal.App.2d 115, 119 [50 Cal-Rptr. 246].)

The proceeding may be taken by a motion in the action in which the judgment was entered, or by an independent action in equity. (Olivera v. Grace, 19 Cal.2d 570, 575-576 [ 122 P.2d 564 ]; Hickey v. Roby, supra, 273 Cal.App.2d 752, 768 ; Harada v. Fitzpatrick, supra, 33 Cal.App.2d 453, 459 , and see authority there collected.) Here Western Pioneer properly chose to proceed by way of a motion in plaintiffs’ action.

We have considered the cases principally relied upon by the appealing plaintiff Pauline R. Villarruel, i.e., Johansen v. California State Auto. Assn. Inter-Ins. Bureau, 15 Cal.3d 9 [ 123 Cal.Rptr. 288 , 538 P.2d 744 ], Drinnon v. Oliver, 24 Cal.App.3d 571 [ 101 Cal.Rptr. 120 ], and Zander v. Texaco, Inc., 259 Cal.App.2d 793 [ 66 Cal.Rptr. 561 ]. None concerns a consent judgment obtained by parties to an action under the circum stances of this case, to the prejudice of a nonparty insurance carrier. We find them to be inapposite to the issues before us.

For the reasons pointed out, the appealing plaintiff’s additional contention “that intervention is not permitted after trial has been concluded and final judgment rendered, absent a showing that the judgment is void or the result of fraud,” is also found to be without merit.

The superior court’s order setting aside the judgment must accordingly be affirmed.

The order setting aside the judgment is affirmed. The appeal from a nonappealable order permitting intervention is dismissed. (See 3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 200, p. 1873.)