Opinion
B291843
05-22-2020
TONY SOTO, Plaintiff and Respondent, v. KULLAMANDIRI SHUKLA, Defendant and Appellant.
John L. Dodd & Associates and John L. Dodd for Defendant and Appellant. Law Office of Richard Meaglia and Richard Meaglia for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. Los Angeles County Super. Ct. No. BC626296 APPEAL from a postjudgment order of the Superior Court of Los Angeles County, Terry A. Green, Judge. Affirmed. John L. Dodd & Associates and John L. Dodd for Defendant and Appellant. Law Office of Richard Meaglia and Richard Meaglia for Plaintiff and Respondent.
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INTRODUCTION
Defendant Kullamandiri Shukla appeals from an order denying her motion to set aside a default judgment entered in favor of plaintiff Tony Soto. Soto sued Shukla for the unauthorized practice of law and negligence after Soto's uncle died intestate. The uncle had hired Shukla—a paralegal—to prepare a trust leaving 67 percent of his estate to Soto. Shukla either failed to prepare the trust or failed to follow up and have the uncle sign it. As a result, Soto received only one-eighth of his uncle's estate through intestate succession. For the first time on appeal, Shukla contends the default judgment is void because Soto, as only a prospective beneficiary, lacks standing to sue her for her alleged negligence in connection with preparing the uncle's trust. She also contends that the default and default judgment are void because she had no notice her default would be entered and that the court abused its discretion when it denied her motion for relief from the default and default judgment under section 473, subdivision (b), of the Code of Civil Procedure (473(b)). We find no error and affirm.
Undesignated statutory references are to the Code of Civil Procedure unless otherwise stated.
FACTS AND PROCEDURAL BACKGROUND
1. The pleadings
Around March 2012, Soto's uncle Steven Macias hired Shukla to prepare a living trust and other estate planning documents for him. Macias paid Shukla $1,375 to prepare the documents. Shukla is not an attorney. She holds herself out as a paralegal.
Macias told Shukla he wanted to leave 67 percent of his estate to Soto and the remaining 33 percent to Soto's sister. Shukla contends she prepared the trust to give 67 percent of the trust assets to Soto.
Macias died in October 2012. Due to Shukla's alleged negligence, either she never prepared Macias's trust or Macias never signed it. At his death, Macias's assets remained titled in his name; they never were transferred to the trust. Because the assets were not transferred to the trust, Soto was required to initiate a probate proceeding. Three other heirs have made claims in that probate proceeding. Based on intestate succession, Soto will receive one-eighth of his uncle's assets instead of the 67 percent he would have received if Shukla had had Macias sign the trust.
Soto alleges he "was an intended beneficiary of [Macias] and has been damaged as a result of [Shukla's] unauthorized practice of law and her failure to carryout [sic] the wishes and desires of [Macias] in preparing a trust by which [Soto] would receive 67% of the assets owned by [Macias]." He also alleges that, "by agreeing to prepare the [t]rust and other estate planning documents, [Shukla] owed a duty to [him] to do so competently and to use the level of skill, prudence and diligence as an attorney in Los Angeles county would possess and to cause [Macias] to sign the documents prior to his death."
Soto alleges Shukla both violated California law prohibiting the unauthorized practice of law and was negligent "in failing to prepare the [t]rust and failing to cause" Macias to sign the trust before he died. He contends his damages consist of the difference between the 67 percent of the estate he should have received based on Macias's instructions to Shukla and the one-eighth of the estate he will receive, an amount "not less than $200,000." The complaint also seeks treble damages under section 1029.8 in an amount "not less than $10,000," as well as attorney fees and costs, "not less than $10,000."
Soto filed his complaint against Shukla in July 2016. Shukla, through her attorney at the time, answered and generally denied the complaint's allegations. The answer pleaded separate affirmative defenses, including that the complaint failed to state a cause of action upon which relief may be granted, and reserved "all other affirmative defenses which become known as new and further evidence has been discovered."
2. Case management hearings and mediation
Shukla's attorney substituted out of the action in November 2016, leaving Shukla to represent herself. When Shukla did not appear at a case management conference scheduled for December 2016, the court continued it to January 2017. Shukla appeared in propria persona at the continued case management conference on February 7, 2017. The court referred the case to private mediation and gave Shukla additional time to find a new attorney.
An attorney—Nicholas Valmes—appeared on Shukla's behalf at a further case management conference on March 13, 2017. During that conference, the court, among other things, ordered counsel to appear for a post-mediation status conference on December 19, 2017. Counsel waived notice. At the next status conference in April 2017, another attorney specially appeared on behalf of Shukla. The court continued the matter again and ordered Shukla's newly-substituted attorney—Vincent Neuman—to appear personally on the continued date. The mediation was held in June 2017. Shukla arrived very late and the case did not settle.
Shukla was not represented for long. On October 26, 2017, attorney Neuman substituted out of the action, leaving Shukla to represent herself.
The court held the post-mediation status conference on December 19, 2017. Shukla did not appear. The court continued the status conference and set an "Order to Show Cause re Impose Sanctions, Strike the Answer and Enter Default" for January 16, 2018 (OSC). The court ordered "a mandatory appearance of all counsel of record and any unrepresented parties to appear in person." The court also ordered Soto's counsel to give notice.
Soto's counsel served a notice of ruling by mail to Shukla and to her former attorney Neuman. The notice of ruling stated: (1) the court ordered the parties to appear personally or appear through their counsel at the continued post-mediation conference on January 16, 2018; and (2) the court issued an order to show cause to Shukla "as to why her answer should not be stricken and/or monetary sanctions awarded against her for her failure to appear at the post mediation conference." The notice of ruling did not attach the court's minute order.
3. January OSC and entry of default
Shukla did not appear at the January 16, 2018 OSC hearing. The court struck Shukla's answer and entered her default. It ordered Soto to file his prove up documents for the default judgment and set an order to show cause on the default judgment for February 15, 2018. The court ordered Soto's counsel to give notice. Soto's counsel served Shukla and her former counsel Neuman by mail the next day. The notice of ruling states in part: "The answer of . . . Shukla was ordered stricken. [¶] . . . An order to show cause regarding entry of judgment was set for February 15, 2018."
In support of his request for entry of default judgment, Soto submitted his own declaration, Shukla's responses to requests for admission and her deposition testimony, as well as other exhibits. He argued Shukla never prepared the trust, will, or other documents his uncle had instructed her (and paid her) to prepare. Soto contended he received only one-eighth of his uncle's $320,987.92 estate or $40,123.49—a $174,938.41 loss caused by Shukla's unauthorized practice of law and negligence. Soto also sought treble damages of $10,000 under section 1029.8, $14,520 in attorney fees under that same statute, and court costs of $827.
Soto's counsel served Shukla by mail with the request for entry of default and default judgment. On February 9, 2018, the court entered judgment in Soto's favor for $200,285.41. Shukla appeared on February 15, 2018, and asked the court for permission to file a motion to set aside the default judgment. The court granted her request and set the motion for April 2, 2018. The court ordered counsel of record and any unrepresented parties to appear in person on that date and advised Shukla "to reserve and file" her motion.
Soto's counsel was not present because the default judgment had been entered and the order to show cause hearing taken off calendar.
Shukla and Soto's counsel appeared on April 2, 2018, but—because Shukla never filed her motion for relief from default—the court ordered the default judgment entered against her to remain in place and the matter to remain dismissed. Two months later, on June 4, Shukla—still representing herself—filed a motion for an order vacating and setting aside the default judgment based on mistake, inadvertence, surprise, and/or excusable neglect under section 473(b).
4. Shukla's motion for relief from default
In support of her motion, Shukla declared she first learned of the default when she received the notice of ruling following the January 16, 2018 OSC. On January 24, 2018, she faxed a handwritten letter to Soto's counsel telling him she "was never informed of the January 16, 2018 hearing nor any other hearings that took place after the mediation." She asked him to mail her those notices, but he did not respond. A copy of the letter was attached to the declaration. Shukla also declared she never received any of the documents Soto filed to obtain entry of default judgment.
Shukla declared she told the court at the February 15, 2018 hearing that she had not been served with notices of the December 2017 conference or January 2018 OSC. She also declared she was unable to file her motion to be heard on the April 2, 2018 hearing date set by the court because the paralegal she hired to help her lost her mother on March 7, 2018, and the motion had to be filed on March 8, 2018. Shukla stated, "Therefore, I was rendered helpless and had already paid for the services and had to wait until she was able to resume her work."
Shukla argued that before the default judgment was entered, she had appeared at "every court hearing, a deposition . . . and the mediation" and "responded to every correspondence and discovery request[ ] Plaintiff mailed and propounded." She contended she was "active" in the matter and would have appeared at the hearings she missed had she been given proper notice.
Soto opposed Shukla's motion. He argued Shukla had notice of the proceedings: her attorney was present at the March 13, 2017 hearing when the court set the December 19, 2017 post-mediation status conference, and Soto's attorney mailed Shukla and her former attorney a notice of ruling setting the January 2018 OSC. Soto's attorney declared none of the notices he mailed to Shukla was returned. Soto noted Shukla had failed to appear at the initial case management conference, delayed in retaining an attorney requiring several continuances of the conference, and appeared three hours late to the four-hour mediation.
Shukla moved to strike the June 22, 2018 opposition as untimely served.
Soto also argued Shukla unreasonably delayed in filing her motion. She admitted she learned about the January 16, 2018 default by at least January 24, 2018, but waited more than four months to file her motion.
The court heard Shukla's motion on July 9, 2018. Shukla represented herself, and Soto appeared through his attorney. No reporter was present. After hearing argument, the court denied the motion.
5. The "settled statement"
Shukla filed a notice of appeal from that order and a designation of record seeking to use a settled statement. In September 2018, Shukla filed her proposed settled statement and Soto filed proposed amendments to it. The court set a status conference concerning the settled statement for April 25, 2019.
A court reporter was present at the status conference. The court re-created the record from the unreported July 9, 2018 hearing by stating its reasons for denying Shukla's motion and allowing her to "rehash" her earlier arguments. The court recalled, "It was enormously frustrating getting you to consistently show up here in court and take part in the process." The court acknowledged Shukla's motion eventually was heard, but not until "18 weeks, three months or so, after" the original hearing date it had given her. The court lamented,
"It just became too frustrating. I lost confidence that, if I were to grant relief from default, that you would be an active participant on a regular basis. [¶] I mean, not showing up to court, not doing the mediation, not doing things I've asked just gave me, as I said, no confidence that you were going to be an
active participant in this case. [¶] I mean, granting relief from default is something I almost do as a matter of course. How often do I ever say no to these motions? Like never. Maybe once or twice in a blue moon. [¶] But when I have problems - when I go out of my way to help people and set hearing dates they want and then nothing happens on those hearing dates or somebody doesn't show up, I just say, well, okay."The court also noted Shukla's notice was "tardy, barely beat the six months." After reiterating its ruling to deny setting aside the default, the court gave Shukla the "chance to make whatever record you want to take to the court of appeal."
Shukla argued her second attorney quit in September 2017, and she never got notice of the post-mediation conference or the January 2018 OSC. She reiterated she learned about those hearings when she got the notice of ruling following the OSC.
She also raised new arguments about her attorney's misconduct—including that he forged her signature on the substitution form. The court did not consider the alleged attorney misconduct as it lacked an evidentiary basis.
Shukla also argued she tried to find an attorney after the court gave her time to file a motion for relief for default when she appeared on February 15, 2018. She said she could not find anyone willing to "take the case in the 30 days and prepare." Instead, she found a "legal document assistant" to help her. Shukla told the court that individual "was getting ready to file the motion to set aside the default," when her mother passed away and she became ill. Shukla reminded the court she had told it about "the situation about the legal document assistant and her not being available" at the April 2, 2018 hearing.
The court again denied the motion to set aside the default and informed the parties it would write "something in addition to this transcript that you can take to the court of appeal." The court ruled, "You don't need a settled statement now because you have a transcript." The court's minute order from the hearing also states: "The Court orders the transcript created this date to be deemed the settled statement." We thus treat the April 25, 2019 transcript as the settled statement of the July 9, 2018 hearing.
A few days later, on April 29, 2019, the court filed a written order denying Shukla's motion and stating the court's reasoning. The court found Shukla was charged with notice of the December 19, 2017 post-mediation status conference because her attorney received notice of it at the case management conference he attended on March 13, 2017.
The court noted Shukla's motion rested on her assertion she never received notice of the January 2018 OSC. The court acknowledged Soto's counsel served notice of the OSC by mail, but the notice of ruling "did not mention the possible entry of default." The court concluded that even if Shukla had received the notice of ruling, "she would not have been aware of the immediacy of her danger. Defendant Shukla's failure to receive the notice, combined with the fact that the notice itself was inadequate, constitutes a showing of surprise."
The court, however, found Shukla did not move for relief under section 473(b) "diligently, within a reasonable time of discovery of the problem," as required. In the court's words, "Shukla has waited a whopping 18 ½ weeks from her time of discovery (January 24, 2018) to file this motion." The court noted it "even set a motion date at her request in the intervening time, but she failed to file the motion. The only explanation she gives is that she hired a paralegal who had a death in the family around the time the motion was due. . . . Sympathetic though this event may be, it fails as an explanation for why Defendant Shukla failed to file the motion then or at any time within the next three months. The paralegal is not counsel, and while affirmative error by a staff member may be a reasonable explanation, the mere absence of that staff member would not be an excuse for any representative to simply cease functioning altogether. [¶] Therefore, Defendant Shukla's motion is DENIED for lack of diligence."
DISCUSSION
1. Applicable law and standard of review
Section 473(b) authorizes the trial court to "relieve a party . . . 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 made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken." Thus, the party seeking relief must show both (1) " ' "a satisfactory excuse for his default," ' " and (2) " ' "diligence in making the motion after discovery of the default." ' " (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1420 (Huh).)
" 'A ruling on a motion for discretionary relief under section 473 shall not be disturbed on appeal absent a clear showing of [an] abuse' " of discretion. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.) "The scope of the trial court's discretion under section 473 is broad [citation] and its factual findings in the exercise of that discretion are entitled to deference." (Minnick v. City of Petaluma (2016) 3 Cal.App.5th 15, 24 (Minnick).) Accordingly, a reviewing court considers whether "the trial court exceeded the bounds of reason, all of the circumstances before it being considered." (In re Marriage of Jacobs (1982) 128 Cal.App.3d 273, 280.)
However, "[b]ecause the law favors disposing of cases on their merits, 'any doubts in applying section 473 must be resolved in favor of the party seeking relief from default [citations]. Therefore, a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits.' " (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980.) " 'Unless inexcusable neglect is clear, the policy favoring trial on the merits prevails.' " (Minnick, supra, 3 Cal.App.5th at p. 24, quoting Elston v. City of Turlock (1985) 38 Cal.3d 227, 235.)
2. Shukla's standing argument is a challenge to the sufficiency of the complaint
For the first time on appeal, Shukla contends Soto has no standing to bring his action against her because Macias never executed the trust documents. She argues we therefore must reverse the judgment and order the action dismissed. Soto relied on Biakanja v. Irving (1958) 49 Cal.2d 647 (Biakanja) to support his liability theory. There, our Supreme Court affirmed a judgment in favor of the sole named beneficiary to a will and against the nonattorney notary who drafted it when the will was invalid due to the notary's failure to have it properly attested. The intended beneficiary recovered the difference between what he would have received under the will if it had been valid and what he received through intestate succession. (Id. at p. 648.)
The Court found the notary owed the beneficiary—a third party not in privity—a duty of care based on its balancing of several announced factors, including "the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, and the policy of preventing future harm." (Biakanja, supra, 49 Cal.2d at p. 650; see also Lucas v. Hamm (1961) 56 Cal.2d 583, 588-589, 591 [considering factors articulated in Biakanja, as well as whether "recognition of liability to beneficiaries of wills negligently drawn by attorneys would impose an undue burden on the profession," to find intended beneficiaries of an executed will, who lost their testamentary rights because attorney failed to draft the will properly, could recover from the attorney "as third-party beneficiaries"].)
Soto cited Biakanja in his complaint, so Shukla could have addressed its application in her section 473(b) motion. She did not. But, as Shukla asserts, "contentions based on a lack of standing involve jurisdictional challenges and may be raised at any time in the proceeding." (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 438-439 (Common Cause).) Nevertheless, we find no standing issue.
Soto alleged he was injured as a result of Shukla's unauthorized practice of law in preparing his uncle's trust. A person injured by an individual practicing law without a license may sue for losses resulting from the individual's unauthorized practice of law. (See § 1029.8; McKay v. Longsworth (1989) 211 Cal.App.3d 1592, 1595-1596 (McKay) [individual purporting to be a lawyer liable to doctor he sued on behalf of his client for the doctor's emotional distress, attorney fees, and increased insurance premiums resulting from the lawsuit]; Tuft et al., Cal. Practice Guide: Professional Responsibility (The Rutter Group 2019) ¶ 1:250.) Moreover, Soto's allegations demonstrate he has "a sufficient interest in the subject matter of the dispute to press [his] case with vigor," the purpose of the standing requirement. (Common Cause, supra, 49 Cal.3d at p. 439; Torres v. City of Yorba Linda (1993) 13 Cal.App.4th 1035, 1046 ["California decisions . . . generally require a plaintiff to have a personal interest in the litigation's outcome."])
In our view, Shukla's challenge is directed to the sufficiency of the complaint, not standing. She now contends she owed no duty to Soto—a potential beneficiary of his uncle's unexecuted trust—and correspondingly did not cause Soto harm as a result of her unauthorized practice of law in drafting the trust. Shukla relies on a line of cases finding testators' attorneys owed no duty to potential beneficiaries in the absence of an executed testamentary instrument. (See Radovich v. Locke-Paddon (1995) 35 Cal.App.4th 946, 952 [attorney owed no duty to potential beneficiary named in draft of a will when decedent held onto draft to confer with her sister before finalizing it, but died without executing the will]; Chang v. Lederman (2009) 172 Cal.App.4th 67, 84 [husband's lawyer owed no duty to wife where he instructed attorney to revise his trust to leave his entire estate to her, but died before amending the trust]; Hall v. Kalfayan (2010) 190 Cal.App.4th 927, 937-938 [attorney owed no duty to potential beneficiary when he failed to complete client's new estate plan and have her conservator execute it before her death].)
Indeed, no copy of the trust Shukla drafted for Soto's uncle has surfaced. Shukla testified her only copy was wiped from her computer when technicians removed a virus.
Shukla also argues she has a meritorious defense based on these same authorities that supports reversing the court's order. Shukla did not raise the merits of her defense in the trial court, nor was the trial court required to consider whether she had a meritorious defense for purposes of exercising its discretion under section 473(b). We do not consider it.
As Shukla asserts, had she filed a demurrer, the trial court likely would have sustained it based on these authorities, presumably with leave to amend. (But see McKay, supra, 211 Cal.App.3d at pp. 1595-1596 [policy considerations that "largely shield licensed attorneys from third party suits" do not "protect those who intentionally violate the very laws which seek to protect the public by requiring the testing and licensing of those who would practice law"].) She did not. Nor did Shukla appeal from the judgment—only from the order denying her motion for relief from that judgment. She may not now object to the judgment on the ground the complaint failed to allege facts sufficient to state a cause of action against her. (Kim v. Westmoor Partners, Inc. (2011) 201 Cal.App.4th 267, 282 [" '[a]n objection that the complaint failed to state facts sufficient to constitute a cause of action may be considered' " on appeal from the default judgment].) And, because the trial court had jurisdiction over the parties and the subject matter of the complaint, and the complaint apprised Shukla of the nature of Soto's demand against her, the default judgment is not void, " 'irrespective of whether or not the complaint states a cause of action.' " (Trans-Pacific Trading Co. v. Patsy Frock & Romper Co. (1922) 189 Cal. 509, 513-514; Falahati v. Kondo (2005) 127 Cal.App.4th 823, 830; see also Molen v. Friedman (1998) 64 Cal.App.4th 1149, 1156-1157 [default judgment may not be collaterally attacked for failure of complaint to state a cause of action; only if void on its face].)
The time for Shukla to have appealed from the judgment expired in April 2018, before the court heard her motion.
3. The trial court's finding of surprise did not render the judgment void
The trial court found Shukla satisfied the first prong required to obtain discretionary relief under section 473(b). It concluded she demonstrated "surprise" based on her declaration she did not receive notice of the order to show cause hearing "combined with the fact" the notice did not mention her default could be entered at the hearing, only that her answer could be stricken and/or monetary sanctions awarded. The court concluded Shukla could not have been "aware of the immediacy of her danger" based on the notice, even if she did receive it.
Shukla contends the default and default judgment were void based on the inadequate notice. We disagree. " 'A court can lack fundamental authority over the subject matter, question presented, or party, making its judgment void, or it can merely act in excess of its jurisdiction or defined power, rendering the judgment voidable.' " (See, e.g., Lee v. An (2008) 168 Cal.App.4th 558, 565 (Lee).) In Lee, our colleagues in Division Four concluded the trial court "had fundamental jurisdiction over the parties and subject matter, but acted in excess of its jurisdiction by imposing terminating sanctions without adequate prior notice," rendering a default judgment voidable. (Id. at pp. 565-566 [default and default judgment entered after defendant failed to appear for case management conferences voidable rather than void where notice informed her of need to comply with the court's local rule, but did not state her answer could be stricken and default entered if she failed to appear].) The same thing happened here. The court imposed terminating sanctions, striking Shukla's answer and entering her default, without adequate notice. The judgment therefore was voidable, not void. (See id. [explaining party seeking to set aside a voidable judgment must act to set it aside " 'before the matter becomes final' "].)
Shukla distinguishes Lee on the ground it had " 'bad facts.' " The defendant there was dilatory—she sought to set aside the judgment two years after she learned it had been entered. (Lee, supra, 168 Cal.App.4th at p. 566.) She instead relies on Reid v. Balter (1993) 14 Cal.App.4th 1186, 1193-1194 where a different panel of this division concluded the trial court's order dismissing the plaintiffs' case for failure to appear at a status conference was void because plaintiffs received no notice the case would be dismissed if they did not appear. The notice there warned a failure to appear could result in specific sanctions, including " 'removal of the case from the civil active list,' " but not dismissal. (Id. at pp. 1189, 1194.) Here, in contrast, while inadequate, the notice did specifically state Shukla's answer could be stricken. Therefore, Shukla was not without any notice of the sanctions imposed. Moreover, the trial court in Reid vacated its order of dismissal—defendants challenged plaintiffs' entitlement to have it set aside. (Id. at pp. 1188, 1193-1194.)
Because we conclude the judgment was voidable and not void based on the inadequate notice, Shukla's only recourse to set aside the judgment was through section 473(b).
4. The court did not abuse its discretion when it denied Shukla's motion for lack of diligence
The court expressly denied Shukla's motion on section 473(b)'s second requirement—diligence. "[R]elief is not warranted [under section 473] unless the moving party demonstrates diligence in seeking it." (Huh, supra, 158 Cal.App.4th at p. 1420.) "While six months . . . represents the outside limit 'of the court's jurisdiction to grant relief . . . , the "reasonable time" test stands as an independent consideration and in any given situation, its determination, within the maximum six-month period, "depends upon the circumstances of that particular case." ' [Citation.] For that reason, 'there must be some showing—some evidence—' of the relevant circumstances." (Id. at p. 1422 [finding no basis for relief "[g]iven the absolute failure of proof" to explain delay in seeking relief]; Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1181 ["what a 'reasonable time' is in any case depends primarily on the facts and circumstances of each individual case, but definitively requires a showing of diligence in making the motion after the discovery of the default"].) Courts routinely have found a delay exceeding three months unreasonable when there is no evidence to explain the delay. (See Stafford, at p. 1184 [acknowledging no court has set aside a default "where there were unexplained delays of anything approaching three months after full knowledge of the entry of default"].) "Whether a party has acted diligently is a factual question for the trial court." (Huh, at p. 1420.)
The court found Shukla discovered her default had been entered by January 24, 2018. She did not file her motion to set it aside until June 4, 2018—just under four and half months later. At Shukla's request, the court had set an April 2, 2018 hearing date for her motion to set aside the default, but she missed the March 8, 2018 filing deadline. (§ 1005, subd. (b) [moving and supporting papers must be filed 16 court days before hearing].)
Her explanation for the delay: she had hired an individual to help her, whom she has described as both a paralegal and a legal document assistant, but that person's mother died the day before the motion was due, and she could no longer work on the matter. Shukla explained she had paid for the paralegal's services in advance, so she had to wait on the paralegal to be able to "resume" her work. Shukla said she could not find another lawyer or paralegal to help her. Apparently, she explained the situation about the paralegal's unavailability at the April 2, 2018 hearing.
The court found this excuse inadequate. The record supports that finding. As the court found, Shukla gave no explanation as to why the paralegal's unavailability prevented her from filing her motion until June—three months after it originally was due and two months after she appeared before the court to explain the delay. Shukla said the paralegal became unavailable the day before the March 8 filing deadline. The court reasonably could infer that whatever was left to be done would not require an additional three months of preparation—even for an unrepresented party. (Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267 [self-represented litigants are " ' "entitled to the same, but no greater, consideration than other litigants and attorneys" ' "].) Based on that unexplained delay and the earlier delays caused by Shukla's repeated substitutions of attorneys, the trial court's frustration with Shukla and its lack of confidence in her regular participation in the case was not unreasonable.
The trial court appears to have been under the misimpression that Shukla filed her motion on the eve of the six-month statutory deadline. Its written ruling states Shukla filed her motion "a mere 12 days before the 6-month statutory time clock was to expire." The trial court miscalculated by one month. It entered Shukla's default after striking her answer on January 16, 2018, requiring her to file her motion by July 16, 2018 at the latest. Thus, she filed and served her section 437(b) motion a little over four and half months after the court entered her default—a month and 12 days before the jurisdictional deadline.
Shukla provided no reasonable excuse under the circumstances for waiting almost another three months after the paralegal became unavailable to file her motion. We conclude the court did not abuse its discretion when it denied Shukla's motion despite finding she demonstrated surprise. See, e.g., Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 526-528, 532-533 [reversing order granting relief from a default and default judgment under section 473(b) for unreasonable delay after defendant failed to answer due to its officer's excusable mistake, but its attorney took no action to file the motion for more than three months after learning of the entry of the default and provided no explanation or excuse for the delay]; Ludka v. Memory Magnetics International (1972) 25 Cal.App.3d 316, 321-322 [finding trial court did not abuse discretion in denying motion to set aside default where defendant's counsel was aware of entry of default but waited three months without explanation to file motion for relief].)
DISPOSITION
The order denying Kullamandiri Shukla's motion for relief from the default judgment is affirmed. Respondent is to recover his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J. We concur:
EDMON, P.J.
LAVIN, J.