Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment and an order of the Superior Court of Los Angeles County Super. Ct. No. NC038626, Tracy T. Moreno-Grant, Judge.
Law Offices of Kathleen A. Kenne and Kathleen A. Kenne for Defendant and Appellant.
Hall & Bailey and Donald R. Hall for Plaintiffs and Respondents.
KLEIN, P. J.
Defendant and appellant Evangela A. Thomas (Thomas) appeals a default judgment and an order denying her motion to vacate the entry of default and default judgment.
Thomas was duly served with the summons and complaint. The trial court acted within its discretion in rejecting Thomas’s claim she made a reasonable mistake in failing to respond timely to the complaint. Further, Thomas has no basis to attack the default judgment. Accordingly, the default judgment and the subsequent order denying the motion for relief under Code of Civil Procedure section 473 (section 473) are affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
1. The complaint and service of summons.
On July 7, 2006, plaintiffs and respondents Lawrence E. Coffman, individually, and Lawrence E. Coffman, as Trustee of the Lawrence (Larry) E. Coffman Living Trust dated January 9, 1992 (collectively, Coffman), filed a complaint against Thomas for cancellation of written instruments, declaratory relief and fraud.
On July 14, 2006, Thomas was served with a summons, complaint, statement of damages and other court-related documents.
According to the proof of service, the additional documents served on Thomas consisted of an Alternative Dispute Resolution Package, a Civil Case Cover Sheet, a Cover Sheet Addendum, Notice of Case Assignment, Notice of Case Management Conference and Order to Show Cause Hearing.
The summons served on Thomas was the mandatory Judicial Council form (SUM-100) and it contained the following standard advisement: “You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your case. There may be a court form that you can use for your response. You can find these court forms and more information at the California Courts Online Self-Help Center (www.courtinfo.ca.gov/selfhelp), your county law library, or the courthouse nearest you. If you cannot pay the filing fee, ask the court clerk for a fee waiver form. If you do not file your response on time, you may lose the case by default, and your wages, money, and property may be taken without further warning from the court. [¶] There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may want to call an attorney referral service. If you cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services program. You can locate these nonprofit groups at the California Legal Services Website (www.lawhelpcalifornia.org), the California Courts Online Self-Help Center (www.courtinfo.ca.gov/selfhelp), or by contacting your local court or county bar association.” (Italics added.)
2. Thomas fails to answer the complaint, resulting in entry of her default.
Thomas failed to answer the complaint within the time permitted by law.
Thirty-four days after Thomas was served, on August 17, 2006, pursuant to Coffman’s request, the clerk entered Thomas’s default. On August 21, 2006, Thomas received notice of entry of default.
On August 31, 2006, Thomas consulted with and retained the law offices of Paul Kingston. Thomas explained to Kingston she had been served on July 14, 2006, but mistook the Case Management Conference date of December 4, 2006, as the operative date to respond to the summons and complaint, and it was not until she received the notice of entry of default on August 21, 2006, that she realized her mistake.
3. Default proveup and default judgment.
On August 31, 2006, Coffman submitted a request for a default judgment against Thomas in the amount of $145,298.
On October 6, 2006, the matter proceeded to a default proveup. At the hearing, Coffman testified as follows: In July 2004, Darryl Delgardo requested a loan from him. Delgardo’s home in Twentynine Palms had insufficient equity to support the loan amount. Thomas agreed to help secure the loan to Delgardo with a deed of trust on her real property in Long Beach. On August 17, 2004, Delgardo and Thomas executed deeds of trust on their respective properties in Coffman’s favor, and Delgardo also executed a junior deed of trust on his Twentynine Palms property in Thomas’s favor, to ensure Thomas that Delgardo would repay the loan to Coffman. One year later, Thomas requested Coffman to release the deed of trust on her property to enable her to refinance her property. Coffman agreed to release his deed of trust on Thomas’s property upon condition she release her deed of trust on the Twentynine Palms property. Coffman reconveyed his deed of trust on Thomas’s Long Beach property. However, Thomas then refused to reconvey her deed of trust on the Twentynine Palms property. Delgardo subsequently defaulted on his loan and Coffman acquired title to the Twentynine Palms property. Coffman thereafter sold the Twentynine Palms property. At the time of sale, the escrow company withheld $200,000 from the sale proceeds pending the elimination of Thomas’s deed of trust on the property.
On October 6, 2006, the trial court entered a default judgment ordering Thomas to reconvey her deed of trust on the Twentynine Palms property, and in the event she failed or refused to execute a reconveyance, the clerk of the court was authorized to execute the reconveyance. The trial court also awarded Coffman $7,500 in attorney fees and $380 in costs, for a total of $7,880. However, the trial court denied Coffman’s request for damages, ruling they had not been proven.
4. Thomas’s motion for relief from default and default judgment.
On December 4, 2006, three and a half months after Thomas was served with notice of entry of default, she filed a motion to vacate the default and default judgment, accompanied by the declarations of Thomas and her counsel and a proposed answer to the complaint.
The moving papers asserted Thomas had meritorious defenses to Coffman’s complaint, including the statute of frauds, and that relief from default should be granted “on the grounds [Thomas] failed to file a timely answer due to [her] mistake in understanding the operative dates on the summons and complaint and the accompanying court documents, including the assignment of the initial Case Management Conference calendared for December 4, 2006.”
The moving papers also asserted Coffman’s counsel had rushed to perfect the default judgment, and that Thomas’s counsel “wrongly trusted and assumed that [Coffman’s] counsel would not proceed to judgment . . . without informing defendant’s counsel of his decision [to do so] after consulting his client.”
a. Communications between Coffman’s and Thomas’s attorneys.
In this regard, the supporting declaration of attorney Kathleen Kenne stated in relevant part:
On September 1, 2006, Thomas’s counsel had a telephone conversation with Donald Hall, Coffman’s attorney. In that conversation, Thomas’s counsel requested that Hall stipulate to set aside the default and allow Thomas to answer. “Mr. Hall was very reasonable and professional and indicated that he was receptive to [the request]. [¶] [He] indicated that he would consult with his client and ‘let us know’ whether he would execute a stipulation to set aside the default . . . . [¶] Mr. Hall at no time revealed the request for default judgment had been filed on August 31, 2006, or that he intended to proceed with the perfection of the default judgment . . . .” (Italics added.)
On September 1, 2006, Thomas’s attorney wrote a letter to Mr. Hall confirming the essence of their conversation.
Nearly three months later, on November 20, 2006, Thomas’s attorney wrote a one-sentence follow-up letter to Hall stating: “Please respond to my letter of September 1, 2006 . . . and set aside the default!”
In a letter dated November 27, 2006, Hall responded as follows: “If your client can produce documentation establishing a valid financial interest in the subject property my client will consider a resolution without further litigation. [¶] However, without such documentation my client believes that Ms. Thomas is simply trying to leverage a settlement on a claim which has no legal or factual basis. [¶] Accordingly, my client is not willing to stipulate to set aside the default or the judgment, a copy of which is enclosed.” It was at that juncture that Thomas’s counsel learned the default had proceeded to a default judgment on October 6, 2006.
5. Trial court’s ruling.
On March 1, 2007, the matter came on for hearing. The trial court denied Thomas’s motion, stating “Defendant has failed to establish mistake, inadvertence, surprise or excusable neglect.”
The order states the denial of the motion is “without prejudice.” However, the trial court’s ruling is the final disposition below. On or about April 6, 2007, the six-month period for seeking relief under section 473 from the October 6, 2006 default judgment had expired.
The trial court rejected Thomas’s claim she made a reasonable mistake in relying on the date of the case management conference as the date for responding to the summons and complaint. It observed: “[D]efendant has failed to show excusable neglect. There has been no authority or evidence submitted to show that a reasonably prudent person under the same circumstances might also have been confused as the defendant attests. And you have now stated that she is actually a registered nurse which means she has a college education.”
Thomas’s attorney asserted that merely because Thomas is a nurse, “that doesn’t mean she understands court documents.” The trial court was not persuaded, stating: “That would be something the court would consider if, in fact, she had dyslexia or reading impairment or something of that nature which would make her a person that may have difficulty. But I see nothing that would indicate that there was any basis for this confusion. This statement is served with every summons and complaint.” (Italics added.)
On March 5, 2007, Thomas filed notice of appeal from the March 1, 2007 order, as well as from the default judgment entered October 6, 2006.
The notice of appeal is timely. There is no indication Thomas was ever served with notice of entry of the default judgment. Therefore, Thomas had 180 days from the October 6, 2006 entry of the default judgment to file notice of appeal from the judgment. (Cal. Rules of Court, rule 8.104(a).)
CONTENTIONS
Thomas contends: the motion to set aside the default and default judgment was timely and therefore should have been granted; she should have been granted discretionary relief pursuant to section 473, subdivision (b) because she established a legitimate and honest mistake of law and fact in interpreting the operative date for her first responsive pleading; Coffman incorrectly asserted, and the trial court incorrectly adopted, a reasonably prudent person standard as the basis for rejecting Thomas’s claim of an honest mistake of law and fact; the trial court further narrowed the reasonably prudent person standard; she should have been granted equitable relief from the default and default judgment because Coffman’s counsel fraudulently induced her counsel to delay in moving to set aside the default so as to allow Coffman time to perfect the default judgment and to obtain the related orders reconveying Thomas’s interest in real property by default; Coffman rushed to perfect his judgment; she should have been granted equitable relief from the default judgment because the default judgment reconveying her real property interest was based entirely on Coffman’s hearsay arising out of an unverified complaint alleging an oral agreement regarding real property, in violation of the statute of frauds; Coffman’s counsel admitted that Thomas is owed a deficiency based on her note from Delgardo; and she is entitled to relief from all steps taken since the default and default judgment, including revocation of the order reconveying her deed of trust to Coffman.
DISCUSSION
1. General principles.
a. The pertinent statute.
Section 473 states in relevant part at subdivision (b): “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Italics added.)
b. Standard of appellate review.
We review the trial court’s order denying relief under section 473 pursuant to the deferential abuse of discretion standard. As stated in In re Marriage of Connolly (1979) 23 Cal.3d 590, at pages 597-598: “In reviewing the evidence in support of a section 473 motion, we extend all legitimate and reasonable inferences to uphold the judgment. The disposition of such a motion rests largely in the discretion of the trial court, and its decision will not be disturbed on appeal unless there has been a clear abuse of discretion. Although precise definition is difficult, it is generally accepted that the appropriate test of abuse of discretion is whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered. [Citations.] . . . [W]hen two or more inferences can reasonably be deduced from the facts, a reviewing court lacks power to substitute its deductions for those of the trial court. [Citations.]”
2. Trial court acted within its discretion in rejecting Thomas’s claim she made a reasonable mistake in construing the date of the case management conference as the deadline for responding to the summons and complaint.
In seeking relief from default, Thomas contended in her moving papers below that when she received service on July 14, 2006, she mistook the “prominently dated Case Management Conference date of December 4, 2006, as the operative date in which to respond to the summons and complaint. . . . As a defendant in pro per this is a reasonable and understandable mistake. It was not until she received the notice of entry of default on or about August 21, 2006, did she realize the mistake. At that point she immediately contacted and retained counsel.” (Italics added.)
The traditional discretionary relief provision of section 473 requires that the court assess “ ‘the reasonableness of the misconception and the justifiability of lack of determination of the correct law.’ ” (Hanooka v. Pivko (1994) 22 Cal.App.4th 1553, 1563, italics added; accord Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276 [in examining claim of mistake or neglect on petition for relief from government claims statute, inquiry is whether “ ‘a reasonably prudent person’ ” under the same or similar circumstances might have made the same error]; Solv-All v. Superior Court (2005) 131 Cal.App.4th 1003, 1007 [applying Bettencourt’s reasonably prudent person standard to claim for discretionary relief under section 473].)
Case law has rejected claims of mistake by defendants in similar circumstances.
The early case of Garner v. Erlanger (1890) 86 Cal. 60 establishes that a failure to read a summons is not a basis for setting aside a default. There, the Supreme Court stated: “ ‘Where the defaulting party discloses . . . a degree of negligence, carelessness, and lack of diligence not to be predicated of a prudent business man in a matter of material concern to him, this court will not, on appeal, disturb the order of the court below denying such application.’ In this case it appears that appellant was served in Tulare County, and that he held in his hands copies of the summons and complaint for more than ten days, without once looking at them to see whence they were issued, or where he had been sued. This shows a degree of carelessness not easily accounted for, and the court below may well have concluded that he was guilty of such inexcusable neglect as should deprive him of the relief sought. In the exercise of its discretion the court denied the motion, and in doing so we cannot say that it acted improperly, or in any way abused the discretion with which it was clothed.” (Id. at p. 63, italics added.)
In Gillingham v. Lawrence (1909) 11 Cal.App. 231, the defendant was personally served with the summons and his default was duly entered after he failed to respond. (Id. at p. 232.) The defendant moved for relief from default, asserting, inter alia, “that he did not know that he had to file a written appearance or answer . . . .” (Ibid.) In upholding the trial court’s order denying relief from default, the reviewing court observed, “[t]he defendant could read, and the summons expressly told him the time within which he must appear and answer. He let the time pass, and never even consulted an attorney. He was guilty of such carelessness and lack of diligence as could not be imputed to a prudent business man in a matter of material concern to himself. . . . If this court should determine that the defendant, as matter of law, was entitled to relief in this case, there could scarcely be a default judgment that would not have to be set aside[.]” (Id. at pp. 233-234, italics added.)
Similarly, Gilio v. Campbell (1952) 114 Cal.App.2d Supp. 853, held, “We are unable to discover any basis for believing that the defendant was laboring under any mistake of fact: A mere reading of the summons served on the defendant would have informed him that if he did not appear and answer the complaint within ten (10) days, a judgment could be taken against him. It is to be noted that the defendant does not claim that he was unaware of the contents of the summons and complaint. In any event, a failure to read the summons would furnish defendant no excuse. (Garner v. Erlanger, 86 Cal.60, 62 [24 P. 805]).” (Id. at p. 857, italics added.)
In the instant case, the Judicial Council form summons which was served on Thomas advised her, in plain English, that she had “30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court . . . .” A mere reading of the summons served on Thomas would have informed her of the fact. If Thomas were entitled to relief in this case, “there could scarcely be a default judgment that would not have to be set aside . . . .” (Gillingham v. Lawrence, supra, 11 Cal.App. at p. 234.)
Further, the Notice of Case Management Conference, scheduling a conference for December 4, 2006, is not reasonably susceptible to the interpretation that Thomas had until December 4, 2006 to file a written response to the complaint.
Moreover, Coffman’s opposition papers undermined Thomas’s contention she was an unsophisticated defendant in pro per who made an understandable mistake. Coffman’s opposition papers pointed out Thomas had previous experience with legal proceedings and even defaults; she had twice been sued by the Los Angeles District Attorney and in one of those cases, a default judgment had been entered against her. Therefore, Thomas knew from personal experience the consequences that flow from the failure to respond timely to a complaint.
Therefore, the trial court acted within its discretion in rejecting Thomas’s claim she made a reasonable mistake in construing the date of the case management conference as the deadline for responding to the summons and complaint.
3. Thomas’s focus on communications between counsel is misplaced; those contacts have no bearing on the validity of the entry of default.
Thomas argues at length that the failure of Coffman’s counsel to inform Thomas regarding the default judgment proceedings induced Thomas’s counsel to delay in moving to set aside the default so as to allow Coffman time to perfect the default judgment. This argument, relating to post-default events, has no bearing on whether Thomas’s default was properly entered on August 17, 2006.
Further, Thomas’s contention she was induced to delay in seeking relief from default is not germane because Coffman did not contest the timeliness of Thomas’s motion for relief under section 473 . At the hearing on the motion, Coffman’s counsel asserted: “We’re not saying that this motion wasn’t filed timely. We’re saying the default was entered properly and if the default was entered properly, no matter what happens after, that it’s irrelevant.”
Moreover, once Thomas’s default was entered, she was not entitled to any further notice of the proceedings. (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1301 [“After the default was entered, defendant was no longer an active party in the litigation and thus was not entitled to any further notices.”]; 6 Witkin, Cal. Procedure (4th ed. 1997) Proceedings Without Trial, § 152, p. 569 [clerk’s entry of default cuts off defendant’s right to take further affirmative steps such as filing a pleading or motion and the defendant is not entitled to notices or service of pleadings or papers]; Code Civ. Proc., § 1010 [no papers other than amended pleadings need be served upon a party whose default has been duly entered].) Therefore, Coffman’s counsel was not required to notify Thomas a default judgment was being sought.
In short, leaving aside the fact Thomas was not entitled to any notice subsequent to the entry of her default, the communications between counsel regarding a possible stipulation to set aside the entry of default have no bearing on the validity of either the clerk’s entry of default or the subsequent default judgment.
4. Thomas has no grounds for attacking the default judgment.
Turning to the default judgment itself, appellate review of a default judgment is limited to questions of jurisdiction, the sufficiency of the pleadings and excessive damages. (Uva v. Evans (1978) 83 Cal.App.3d 356, 363-364; Corona v. Lundigan (1984) 158 Cal.App.3d 764, 766-767.) Sufficiency of the evidence cannot be reviewed on an appeal from a default judgment. (Uva, supra, at p. 363.)
Thomas conceded she was duly served. There is no challenge to the sufficiency of the pleadings. Further, no damages were awarded at the default proveup; Coffman simply obtained equitable relief consisting of a reconveyance of Thomas’s deed of trust on the Twentynine Palms property.
Therefore, Thomas lacks any basis for attacking the default judgment on appeal.
Thomas contends, inter alia, the default judgment is infirm because it is based on hearsay arising out of an alleged oral agreement regarding real property in violation of the statute of frauds. However, the statute of frauds is a waivable defense. (35 Cal.Jur.3d Statute of Frauds, § 80.)
5. Trial court properly rejected Thomas’s request for equitable relief from the judgment on ground of extrinsic fraud.
Thomas further contends that apart from section 473, the trial court should have granted equitable relief from the default and default judgment on the ground of extrinsic fraud. The contention lacks merit.
“Extrinsic fraud occurs when a party is deprived of the opportunity to present his claim or defense to the court; where he was kept ignorant or, other than from his own negligence, fraudulently prevented from fully participating in the proceeding. [Citation.] Examples of extrinsic fraud are: concealment of the existence of a community property asset, failure to give notice of the action to the other party, and convincing the other party not to obtain counsel because the matter will not proceed (and then it does proceed). [Citation.] The essence of extrinsic fraud is one party’s preventing the other from having his day in court.” (City and County of San Francisco v. Cartagena (1995) 35 Cal.App.4th 1061, 1067, italics added.)
Coffman did not preclude Thomas from having her day in court. Thomas admits she was duly served with the complaint on July 14, 2006, and with the request for entry of default on August 21, 2006. Further, Coffman never agreed to stipulate to set aside the entry of default, nor did he agree to refrain from pursuing a default judgment. Coffman did not prevent Thomas’s participation in the action. Accordingly, there was no extrinsic fraud and Thomas was not entitled to relief on that ground.
DISPOSITION
The default judgment, and the order denying the motion to vacate the default and default judgment, are affirmed. Coffman shall recover costs on appeal.
We concur: KITCHING, J., ALDRICH, J.