Kosnoff v. Wasef

Filed 8/28/08 Kosnoff v. Wasef CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, David A. Thompson, Judge. Affirmed.

Moore & Associates, Kevin J. Moore and Cameron H. Totten for Defendant and Appellant.

Harbin & McCarron, Bruce A. Harbin and Richard H. Coombs, Jr., for Plaintiffs and Respondents.

* * *

Introduction

After defendant Hany Wasef failed to respond to discovery requests, the trial court entered an order compelling responses. When Wasef still failed to respond to discovery, the court awarded terminating sanctions, struck Wasefs answer to the complaint, and entered his default. Wasef filed a motion to set aside his default, pursuant to Code of Civil Procedure section 473; the trial court denied the motion, and Wasef appealed from the ensuing judgment. We affirm.

Wasef failed to show diligence in bringing the motion after discovering the default; therefore, the trial court did not abuse its discretion in denying the motion. More than two months had passed between the date on which Wasef admittedly knew his default had been entered and the date on which he filed his motion for relief, which was 13 days before the trial date. Wasef provided no explanation to the trial court for this delay, and does not argue the issue on appeal.

Procedural History

On April 12, 2006, Callie B. Kosnoff, Rosalia F. Marr, Patricia M. Shears, Linda J. Reese, Clara Cummings, Pauline MacRae, and Lachlan MacRae (plaintiffs) sued Wasef, among others, for damages arising out of a failed real estate transaction. Wasefs default was entered on August 3, 2006, but the parties later stipulated to set aside the default. Wasef answered the complaint on October 2, 2006.

Plaintiffs served written discovery requests on Wasef, through his attorneys of record, on October 20, 2006. On November 1, plaintiffs granted Wasef an extension of time to respond to the discovery requests through December 26, 2006. Wasef did not serve any discovery responses at any time. On January 10, 2007, plaintiffs filed motions to compel responses and a motion to deem the requests for admissions admitted, serving Wasefs attorneys of record.

Also on January 10, 2007, Wasefs attorneys of record served notice that the trial court had granted their motion to withdraw as counsel. A written order granting the motion was filed on January 22, 2007. The order identified Wasefs current and last known address as 18821 Delaware Street, Suite 208, Huntington Beach, California. In a later declaration, Wasef stated, [o]n or about the middle of January, 2007, I sold the property and closed escrow. [] . . . After the sale of the property, I only checked the mail at this address approximately once per month.[1]

Plaintiffs motions to compel discovery responses were heard on February 9, 2007; Wasef did not appear at the hearing and did not file any opposition. The trial court granted the motions to compel and the motion to deem the requests for admissions admitted. Wasef still did not respond to discovery. Plaintiffs filed a motion for terminating sanctions on February 28, 2007, and served it by mail on Wasef at the Huntington Beach address.

Wasef obtained new counsel, who filed a motion for leave to withdraw the deemed admissions on April 2, 2007, and then filed and served a substitution of attorneys on April 5. Plaintiffs opposition to that motion was incorrectly served on Wasef by mail at the Huntington Beach address, rather than on his new counsel of record.

Plaintiffs motion for terminating sanctions was heard on April 6, 2007. Neither Wasef nor his counsel appeared at the hearing, and did not file any opposition. The trial court granted the motion for terminating sanctions, struck Wasefs answer, and entered his default. Plaintiffs counsel incorrectly served the notice of ruling on the order on Wasef at the Huntington Beach address, rather than on his counsel of record.

On April 20, 2007, the trial court found Wasefs motion for leave to withdraw the deemed admissions to be moot in light of the earlier order granting terminating sanctions, striking Wasefs answer, and entering his default. In a later declaration signed June 26, 2007 and filed with a motion to set aside the default, Wasefs counsel stated: Mr. Wasef and Moore & Associates [Wasefs counsel of record] learned that Mr. Wasefs answer had been stricken and default entered when the court denied Mr. Wasefs motion as moot because of said grounds on April 20, 2007.

Trial was scheduled for July 9, 2007. On June 26, Wasef filed a motion to set aside his default. The trial court denied the motion on July 27. After trial, judgment was entered against Wasef, as well as the other defendants. Wasef timely appealed from the judgment.

Discussion

Wasef raises a single argument on appeal the trial court erred in denying his motion to set aside the default. We review this claim for abuse of discretion. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.) The law strongly favors courts exercising their discretion in favor of granting relief from default. (Shapiro v. Clark(2008) 164 Cal.App.4th 1128, 1139.)

The appellate record does not contain a reporters transcript of the hearing on Wasefs motion to set aside the default. The minute order for that hearing reads in relevant part as follows: Defendant Wasefs motion to set aside default is denied for failure to show [(a)] his mistake, inadvertence, surprise, or excusable neglect, or (b) this motion was brought within a reasonable time. [Citations.][2]

We need not address the issue of mistake, inadvertence, surprise, or excusable neglect because the issue of diligence is dispositive. [A] threshold requirement for relief [under Code of Civil Procedure section 473, subdivision (b)] is the moving partys diligence. [Citation.] As the statute itself provides, application for relief shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. [Citation.] Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. [Citations.] But relief is not warranted unless the moving party demonstrates diligence in seeking it. [Citation.] The moving party has a double burden: He must show a satisfactory excuse for his default, and he must show diligence in making the motion after discovery of the default. [Citation.] Whether a party has acted diligently is a factual question for the trial court. [Citation.] (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1420.)

On appeal, Wasef completely fails to address his alleged lack of diligence in filing the motion to set aside the default. In the trial court, Wasef argued he acted diligently in seeking relief, because he did not know about the motion for terminating sanctions until late April 2007 when his motion for leave to withdraw deemed admissions was determined to be moot.

Plaintiffs, however, raise a different argument on appeal (as they did in the trial court): Wasef was not diligent in seeking relief because he waited more than two months from April 20, 2007 until June 26, 2007 after admittedly learning of the terminating sanctions order before filing his motion to set aside the default. Wasef did not address this aspect of his lack of diligence in the trial court.

The trial court did not abuse its discretion in finding the delay from April 20 to June 26, 2007 was not reasonable. A three‑month unexplained delay in seeking relief suggests a lack of diligence. (Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 532; Huh v. Wang, supra, 158 Cal.App.4th at pp. 1421‑1422.) Although the delay here was less than three months, the trial court could also consider that the trial was scheduled for July 9, 2007, just 13 days after the motion to set aside the default was filed, and Wasef had filed a motion seeking a 90‑day trial continuance at the same time as the motion to set aside the default. Wasef provided no factual justification for his delay of more than two months in seeking relief. (See Arnke v. Lazzari Fuel Co. (1962) 202 Cal.App.2d 278, 282‑283 [trial court did not abuse its discretion in granting relief when moving partys counsel submitted an affidavit explaining two‑month delay between service of default judgment and filing of motion seeking relief was due to the fact he has been ill and under the care of a physician].) On this record, the trial courts denial of the motion for relief from default was not an abuse of discretion.

Disposition

The judgment is affirmed. Respondents to recover costs on appeal.

FYBEL, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

OLEARY, J.

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[1] This declaration, signed on March 28, 2007, was served on plaintiffs counsel.

[2] On our own motion, we augment the record on appeal with the minute order, filed July 27, 2007, in Kosnoff v. Hobbs (Super. Ct. Orange County, 2007, No. 06CC05017). (Cal. Rules of Court, rule 8.155(a)(1)(A).)