Rosamond Community Services Dist. v. Satterfield

Filed 1/19/10 Rosamond Community Services Dist. v. Satterfield CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Sidney P. Chapin, Judge.

Law Offices of Margis Matulionis and Margis Matulionis for Defendant and Appellant.

Best Best & Krieger, Victor L. Wolf and J. Brady Brammer for Plaintiff and Respondent.

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Appellant Satterfield failed to answer a civil complaint filed by respondent Rosamond Community Services District (the District). Appellants default was entered, and the District later obtained a default judgment. According to the complaint, appellant purchased property auctioned by the District and located on Diamond Street in Rosamond, California, but the grant deed prepared by a title company mistakenly included a legal description of an additional parcel of District property located on 20th Street in Rosamond. The default judgment reformed the recorded grant deed to include the legal description only of the Diamond Street property, quieted the Districts title as owner in fee simple of the 20th Street property, and awarded the District $18,176.60 in attorney fees and $479 in costs. More than six months after appellants default was entered, appellant moved to set aside the default and default judgment. The court denied appellants motion, and he now appeals from the courts order denying the motion.

APPELLANTS CONTENTION

Appellant contends that the court erred in denying his motion for relief from default and from the default judgment. As we shall explain, we find no error and will affirm the superior courts order denying appellants motion.

FACTS

The record on appeal, which consists of the clerks transcript but no reporters transcript of the hearing on appellants motion, shows the following. The District filed its complaint on September 17, 2007, and served appellant on October 8. The District filed a request for entry of default on December 13, 2007, but default was not entered as requested because of discrepancies between the way parties were named in the complaint and the way they were named on the request. On December 28, 2007, the District filed a corrected request for entry of default, and on that date appellants default was entered as requested. Appellant attempted to file something with the court in January 2008. The document appellant attempted to file does not appear in the record on appeal, but the record does include a NOTICE OF REJECTION/REQUEST FOR CORRECTIONS dated January 16, 2008, sent by the court to appellant and stating: The attached LETTER RECEIVED JANUARY 7, 2008 is being returned for the following reason(s): ... REQUEST FOR ENTRY OF DEFAULT HAS BEEN ENTERED ON 12/28/07. PLEASE SEEK LEGAL ADVICE FOR FURTHER ASSISTANCE.

On February 29, 2008, the District filed a case management statement describing the case as follows: The plaintiff sold real property at an auction. The defendant was the high bidder and subsequently acquired the property. After the auction, the grant deed contained an erroneous description of the property and transferred an additional piece of property that was not was [sic] part of the auction. The case management statement was mailed to appellant on the date it was filed. The mailing address was the same as that used by the court on the January 16, 2008 notice the court sent to appellant. Presumably the court had obtained this address from the document appellant sent to the court in January. The first page of the case management statement stated that a case management conference was scheduled for March 17, 2008 at 8:00 a.m., in department 4 of the Kern County Superior Court. Counsel for the District appeared telephonically for the March 17 conference. The courts minute order for the conference stated that there was no appearance by any other party. The courts March 17 minute order for the conference further stated: The court hereby sets an order to show cause re: dismissal pursuant to CRC, Rule 3.110(h) for failure to perfect default judgment. Said hearing is set on 5/1/2008 at 8:30 a.m. in Department 4. Hearing to be vacated if default judgment is earlier perfected. The minute order was mailed to the Districts counsel on March 17. On that same day (March 17) the District filed a request for a default judgment along with declarations and a memorandum of points and authorities in support of the request. The court entered the requested default judgment on April 3, 2008.

Apparently appellant attempted to file an answer to the complaint sometime shortly before or after the default judgment was entered. The clerks transcript on appeal contains a letter dated April 9, 2008, from the Clerk of the Superior Court to appellant Re: GENERAL DENIAL and stating: [] [] The attached papers are being returned for the following reasons: ... Filing fee of $320.00 returned. Check No. 1202 [] ... [] UNABLE TO ACCEPT ANSWER; DEFAULT ENTERED AS OF 12/28/07.

On July 22, 2008 (more than six months after the December 28, 2007 entry of appellants default) appellant, now represented by counsel, filed a motion to set aside the default and the default judgment. The motion includes a declaration of appellant which states in part: As soon as I found out about the default, I filed an answer to Plaintiffs complaint and contacted an attorney about setting aside the default and continuing with litigation. The declaration does not expressly state when it was that appellant in fact did find out about the default, but the declaration states that it was executed on April 7, 2008, even though the motion was not filed until July 22. The motion was ultimately heard by the court on October 2, 2008. The minute order for the hearing states that each side was represented by counsel, and that the matter was argued and submitted.

On October 6, 2008, the court issued its ruling denying appellants motion for relief. The courts ruling stated that appellants motion does not demonstrate mistake, inadvertence, surprise or excusable neglect, that the motion is brought more than six (6) months from the entry of default, and defendant fails to show extrinsic fraud or mistake, and that at hearing, defense counsel advised the court that the purpose of the motion was to obtain relief from the attorneys fees awarded in the default judgment, rather than the substance of the judgment ....

DENIAL OF APPELLANTS MOTION WAS NOT ERROR

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. ... No affidavit or declaration of merits shall be required of the moving party.... (Code of Civ. Proc.,  473, subd. (b).) An application for relief under Code of Civil Procedure section 473, subdivision (b), is a motion and an application for relief under the statute is deemed to be made upon filing in court of a notice of motion and service of the notice of motion on the adverse party. (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 341.)

The superior court ruled that appellants motion for relief had not been made within ... six months .... (Code of Civ. Proc.,  473, subd. (b).) The court was correct. The six-month period of Code of Civil Procedure section 473 runs from the date of entry of default rather than from the date of entry of the default judgment [citations]. (Weiss v. Blumencranc (1976) 61 Cal.App.3d 536, 541; in accord, see also Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42; 8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial Court,  176, p. 1081.) The reason for the rule is that vacation of the judgment alone ordinarily would constitute an idle act; if the judgment were vacated the default would remain intact and permit immediate entry of another judgment giving the plaintiff the relief to which his complaint entitles him. (Rutan v. Summit Sports, Inc. (1985) 173 Cal.App.3d 965, 970; in accord, see also Howard Greer etc. Originals v. Capritti (1950) 35 Cal.2d 886, 888-889.) Here, appellants default was entered on December 28, 2008, and his motion for relief from that default was not filed until more than six months later on July 22, 2008. That is really the end of the matter. The six-month time limit for granting relief under section 473 is jurisdictional and relief cannot be granted under section 473 if the application for such relief is instituted more than six months after the entry of the judgment, order or proceeding from which relief is sought. (Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 735, fn. 3; in accord, see also Manson, Iver & York v. Black, supra, 176 Cal.App.4th at p. 42.) [M]ore than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980, citing to Aldrich v. San Fernando Valley Lumber Co., supra, 170 Cal.App.3d 725.) A motion seeking Code of Civil Procedure section 473 relief lies within the sound discretion of the trial court, and the trial courts decision will not be overturned absent an abuse of discretion. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.) Appellant concedes that his default was entered on December 28, 2007, and that his motion for relief was filed more than six months later on July 22, 2008. Under these circumstances, the superior court had no choice but to deny Code of Civil Procedure section 473 relief.

When the six-month Code of Civil Procedure section 473 deadline has passed, a party may still seek relief on equitable grounds from a default and default judgment even though statutory relief is unavailable. (Rappleyea v. Campbell, supra, 8 Cal.4th at p. 981.) A court may grant such relief if it finds that the moving party was denied a hearing on the merits due to extrinsic fraud or extrinsic mistake, and such a ruling is also reviewed for abuse of discretion. (Ibid.; see also Mason, Iver & York v. Black, supra, 176 Cal.App.4th at p. 42.) Appellants motion was made only under Code of Civil Procedure section 473, however. He did not request the court to exercise its equitable powers and made no attempt to demonstrate extrinsic fraud or extrinsic mistake. (See Rappleyea v. Campbell, supra, 8 Cal.4th at pp. 981-984.) Nor does the record on appeal appear to contain anything that would suggest a meritorious motion could have been made on equitable grounds. Appellant is simply silent about when he learned he was in default and why he waited until July 22, 2008, to seek relief from default. His statement in his declaration that [a]s soon as I found out about the default, I filed an answer to Plaintiffs complaint is simply inaccurate. No answer has ever been filed. Even if this statement is construed as a statement that appellant unsuccessfully attempted to file an answer, the record on appeal shows only that the court returned the document to him on or about April 9, 2008, and advised him default entered as of 12/28/07. This was at least the second time the court had advised appellant he was in default, as the court had previously advised him he was in default on or about January 16, 2008. Furthermore, even though appellant had been served with the complaint on October 8, 2007, the District only sought to obtain and did obtain the default judgment more than five months later after having been told by the court on March 17, 2008, that the court would dismiss the Districts case on May 1 if the District did not obtain a default judgment by then.

Appellant correctly points out that Code of Civil Procedure section 473 is a remedial measure to be liberally construed and that any doubts existing as to the propriety of the trial courts action will be resolved in favor of a hearing on the merits. (Berman v. Klassman (1971) 17 Cal.App.3d 900, 910.) Indeed, it has been said that in reviewing a ruling on a Code of Civil Procedure section 473 motion, a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits. (Elston v. City of Turlock, supra, 38 Cal.3d at p. 233; Rappleyea v. Campbell, supra, 8 Cal.4th at p. 980.) Sometimes, however, as here, there are no such doubts. Appellants motion was untimely. The policy of liberal construction does not require or even permit a trial court to grant such a motion when the motion was untimely and the court was without jurisdiction to make an order granting Code of Civil Procedure section 473 relief. (Manson, Iver & York v. Black, supra, 176 Cal.App.4th at p. 42.) Were this not so, attorneys would hardly bother to take default judgments. (Gardner v. Superior Court (1986) 182 Cal.App.3d 335, 339.)

DISPOSITION

The order denying appellants Code of Civil Procedure section 473 motion is affirmed. Respondent District is awarded its costs on appeal.

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Ardaiz, P.J.

WE CONCUR:

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Vartabedian, J.

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Levy, J.

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