Perkins Coie v. Viacom
Filed 5/6/13
Perkins Coie v. Viacom CA2/2
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>NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS
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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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE DISTRICT
DIVISION TWO
PERKINS COIE
LLP,
Plaintiff and Appellant,
v.
VIACOM, INC.,
Defendant and Respondent.
B238420
(Los Angeles County
Super. Ct. No.
BC425223)
APPEAL
from an order and judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County. James R. Dunn, Judge. Reversed with directions.
Aires
Law Firm, Timothy Carl Aires for Plaintiff and Appellant.
Kendall
Brill & Klieger, Richard B. Kendall, Richard M. Simon for Defendant and
Respondent.
___________________________________________________
In May 2010, defendant, already in
default, learned that plaintiff was seeking a default judgment. Nevertheless, defendant did not move to
vacate the default and default judgment until a full year later, in May
2011. The trial court granted the motion
in part, modifying the original default judgment by deleting a monetary award
in favor of plaintiff. We conclude that,
because the original default judgment was not void and because defendant did
not act with reasonable diligence, the trial court erred by modifying the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In
2005, plaintiff and appellant Perkins Coie LLP (Perkins Coie), a law firm,
obtained a judgment in the amount of $115,739.42 against the musician Percy
Miller, also known as Master P. Perkins
Coie subsequently obtained assignment orders for levy of payments due from
third parties to Miller and Miller-owned entities. On November 2, 2009,
Perkins Coie had three assignment orders served on defendant and respondent
Viacom Inc. (Viacom).
The
instant matter involves a lawsuit that was filed on November 3, 2009. Perkins Coie filed a
complaint for “creditor’s suit in aid of enforcement of judgment†against both
Miller and Viacom. The complaint alleged
that Miller had a business relationship with Viacom, that Miller had a right to
payment of money due or to become due from Viacom, and that Viacom was liable
in damages to Perkins Coie for money due or becoming due to Miller. In pertinent part, the complaint prayed for
judgment against Viacom (i) “applying any debt owed by [Viacom] . . . to
[Miller], or applying any property [of Miller’s] that is in the possession, custody
or control of [Viacom] . . . in satisfaction of the Judgment ($115,739.42,
together with interest at the rate of $31.70 per day from January 25, 2005,
plus costs of enforcement of judgment);†and (ii) for a money judgment against
Viacom “pursuant to Code of Civil Procedure §708.280, for the value of
[Miller’s right to payment from Viacom] or the amount necessary to satisfy the
Judgment ($115,739.42, together with interest at the rate of $31.70 per day
from January 25, 2005, plus costs of enforcement of judgment), whichever
is less.â€
Default and Default Judgment
On November 6, 2009, Viacom’s registered agent for service of process was personally
served with the summons and complaint.
Viacom filed no answer or other responsive pleading, and on December 31, 2009, a request for entry of default was mail-served on the agent for
service of process. Viacom’s default was
entered by the court clerk on January 5, 2010.
Viacom
still did not take any action in the case.
On May
6, 2010, Perkins Coie mail-served a request
for entry of default judgment on Viacom’s agent for service of process. Several hearings pertaining to the requested
default judgment were held and then, on July 26, 2010, default judgment was
entered in favor of Perkins Coie and against Viacom pursuant to Code of Civil
Procedure section 708.280: (i) applying
any debt owed by Viacom to Miller in satisfaction of Perkins Coie’s judgment
against Miller; (ii) applying any property of Miller’s in the possession,
custody, or control of Viacom in satisfaction of Perkins Coie’s judgment against
Miller; and (iii) in the sum of $115,739.42, together with interest of
$61,117.60, less credits, for a total judgment, including costs of suit, of
$148,885.66.
Motion
to Set Aside Default and Default Judgment
Finally,
on May 13,
2011, after Perkins Coie tried to levy on
the judgment against Viacom, Viacom filed a motion to set aside the default and
the default judgment. In its motion,
Viacom contended that the default judgment exceeded the relief demanded in the
complaint and was thus void; that Viacom did not have actual notice of the
summons and complaint and was unaware of the default judgment; that counsel for
Perkins Coie misrepresented to Viacom the nature of the action and induced it
not to seek relief; that Viacom was not guilty of inexcusable neglect; and that
Viacom had meritorious defenses to the action.
Along
with its motion, Viacom submitted the declaration of Amy Dow, senior vice
president for MTV Networks (a division of Viacom International Inc., which is a
subsidiary of Viacom) and an in-house attorney.
Dow’s declaration stated that after Viacom received assignment orders in
November, the internal legal affairs staff investigated and determined that
Viacom did not owe money to Miller or his enterprises. Dow admitted that Viacom was served with the
summons and complaint on November 6, 2009. She stated, however, that her department, the
department responsible for responding to matters of the sort, did not receive a
copy of the summons and complaint, “apparently due to a routing error.â€
Dow’s
declaration further stated that Viacom was served with the request for entry of
default in January 2010, and when she received a copy she called Timothy Aires,
counsel for Perkins Coie. According to
Dow, Aires told her that he had been trying for years to recover a judgment
from Miller, and that he thought Viacom might be making payments to Miller in
connection with a television pilot.
Aires said that he had filed the lawsuit against Viacom for the purposes
of prompting a phone call from Viacom regarding the pilot. Dow stated that she told Aires she had not
seen the complaint against Viacom and that Viacom did not owe any money to
Miller. Dow’s declaration read: “Mr. Aires then told me that he was not
interested in litigating against Viacom but instead in finding out who was
paying Master P and trying to learn Master P’s business aliases. Aires cut the call short to attend to his
dog, promising to call the next day to follow up on what information Viacom could
offer. I sent him my contact information
shortly after our phone call ended, but he never called. When Aires did not call back, I thought he
had probably moved on to other collection efforts once he had learned that
Viacom did not have anything owing to Master P to assign to his client.â€
Additionally,
attached to Dow’s declaration was a May 2010 e-mail exchange between her and
Aires. On May 6, 2010, Aires had sent Dow an e-mail informing her that there was a
hearing scheduled for the next day regarding the requested default
judgment. Aires’s e-mail stated: “If you have any opposition to entry of a
default judgment being entered against Viacom Inc. for $115,739.42, together
with prejudgment interest . . . plus costs of suit, I suggest you be in Court
tomorrow to explain to Judge Dunn why you never sought relief from default and
filed an answer to the complaint.†Dow
responded that she had not received notice of the hearing and had last heard
from Aires in January, and thus assumed that Aires had decided not to pursue
the matter. She told him she would not
be able to attend the hearing. Aires
responded the next day: “I am simply not
responsible for your failure to follow up on an entered default. . . . Your client is not even entitled to notice
once it’s [sic] default was entered.
. . . I contacted you as a courtesy.â€
The
trial court considered Viacom’s motion to set aside the default and default
judgment on June 20 and July 7, 2011. The court declined to vacate the default, but
it did modify the default judgment by deleting the monetary award in favor of
Perkins Coie.
Perkins
Coie timely appealed.
DISCUSSION
Generally,
there are several methods available to vacate a default judgment. Code of Civil Procedure section 473,
subdivision (b),href="#_ftn1"
name="_ftnref1" title="">[1] allows a trial court to
relieve a defendant from an adverse judgment obtained because of the
defendant’s mistake, inadvertence, surprise, or excusable neglect. Such a motion, however, must be brought
within six months of entry of judgment.
(Ibid.) In some circumstances, a defendant may also
attack a default judgment by filing a motion for new trial. (See §§ 657, 659; Misic v. Segars (1995) 37 Cal.App.4th 1149.) The motion is likewise time-limited, though,
and in no case may be brought later than 180 days after entry of judgment. (§ 659, subd. (a)(2).) Alternatively, a defendant may appeal from a
default judgment (Uva v. Evans (1978)
83 Cal.App.3d 356, 360), but, again, the appeal must be timely filed, and in no
event later than 180 days after entry of judgment (Cal. Rules of Court, rule
8.104).
Because
Viacom’s motion for relief was filed more than nine months after the default
judgment was entered, Viacom could not seek relief by any of the above
procedures. Viacom instead sought to
have the judgment vacated on three alternative grounds: (i) section 473, subdivision (d), which
allows the court to set aside a void judgment, including for excessive damages;
(ii) section 473.5, which applies when service of a summons has not resulted in
“actual notice†to a defendant; and (iii) the court’s inherent equitable
authority, which may be exercised in cases involving extrinsic fraud or
extrinsic mistake. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981-982; >Moghaddam v. Bone (2006) 142 Cal.App.4th
283, 290-291.)
All
three of these latter grounds were discussed by the parties in their papers and
at the trial court hearings, and the hearing transcripts show that the trial
court considered all three grounds. The
actual basis for the court’s decision to vacate the default judgment and issue
an amended judgment is not made clear by either the transcripts or any relevant
order—although, by modifying the judgment, it appears that the court
effectively acted pursuant to section 473, subdivision (d). (See Ostling
v. Loring (1994) 27 Cal.App.4th 1731, 1743 [“Ordinarily, when a judgment is
vacated on the ground the damages awarded exceeded those pled, the appropriate
action is to modify the judgment to the maximum amount warranted by the
complaint.â€].) In any event, we review
each of these three grounds to determine whether the trial court’s decision to
modify the judgment was proper.
I. Section 473, Subdivision (d)
Section
473, subdivision (d), allows the court, either upon its own motion or the
motion of a party, to “set aside any void judgment or order.†Viacom contends that the trial court properly
set aside the original default judgment because the judgment awarded greater
monetary damages than were sought in Perkins Coie’s complaint.
Section
580 provides that the relief granted to the plaintiff by default judgment
“cannot exceed that demanded in the complaint.â€
The purpose of this provision is to ensure that a defendant has adequate
notice of the terms of a default judgment that may be taken against it. (Becker
v. S.P.V. Construction Co. (1980) 27 Cal.3d 489, 493.) “The logic underlying this principle is
simple: a defendant who has been served
with a lawsuit has the right, in view of the relief which the complainant is
seeking from him, to decide not to appear and defend.†(In re
Marriage of Lippel (1990) 51 Cal.3d 1160, 1166.) A default judgment that exceeds the relief
demanded in the complaint is void and may be set aside pursuant to section 473,
subdivision (d). (See >Stein v. York (2010) 181 Cal.App.4th
320, 326; Dakota Payphone, LLC v. Alcaraz
(2011) 192 Cal.App.4th 493, 503.) We
review a trial court’s finding that a default judgment is void de novo. (Cruz
v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 496 (>Cruz).)
In
arguing that damages awarded in the original default judgment exceeded those
demanded in the complaint, Viacom focuses on the complaint’s prayer, which
specifically sought a money judgment against Viacom “pursuant to Code of Civil
Procedure §708.280, for the value of [Miller’s right to payment from Viacom] >or the amount necessary to satisfy the
Judgment ($115,739.42, together with interest at the rate of $31.70 per day
from January 25, 2005, plus costs of enforcement of judgment), >whichever is less.â€href="#_ftn2" name="_ftnref2" title="">[2] (Italics added.) In contrast, the original judgment awarded
Perkins Coie “the sum of $115,739.42, together with interest of $61,117.60 . .
. less credits . . . plus costs of suit . . . for a total judgment of
$148,885.66.†Viacom contends that, by
omitting the conditional phrase “whichever is less,†and by awarding Perkins Coie
the full amount of the underlying judgment (plus interest and costs), the
original default judgment awarded damages greater than those sought in the
complaint. According to Viacom, it owed
Miller absolutely nothing, and so the complaint’s demand of “whichever is lessâ€
could not result in a monetary judgment.
We
find that the complaint was adequate to apprise Viacom of the liability it
faced. As a general rule, a default
judgment is limited to the amount of damages of which a defendant has notice. (Schwab
v. Rondel Homes, Inc. (1991) 53 Cal.3d 428, 433.) “[T]he demand sets a ceiling on
recovery.†(Greenup v. Rodman (1986) 42 Cal.3d 822, 824.) A complaint must provide adequate notice of a
defendant’s potential maximum liability (id.
at p. 826), either through the prayer or by allegations in the body of the
complaint (Hearn v. Howard (2009) 177
Cal.App.4th 1993, 1208-1209; People ex
rel. Lockyer v. Brar (2005) 134 Cal.App.4th 659, 667).
Perkins
Coie’s complaint was not vague. It
specifically set out the maximum damages award sought—the amount of the
underlying judgment ($115,739.42), plus interest ($31.70 per day), plus costs
of suit. The complaint certainly gave
“fair warning†to Viacom that, if it chose not to participate in the action, it
could a face default judgment for the maximum amount sought in the
complaint. (See People ex rel. Lockyer v. Brar,
supra, 134 Cal.App.4th 659, 668 [“The body of the complaint had given fair
warning of at least that exposureâ€].)
Viacom’s
contention that it owed Miller nothing, and could therefore assume that an
award of “whatever is less†would not result in a monetary judgment, may have
been a viable argument if it was made earlier in the action. But it ignores the procedural limitations
imposed on a defendant who does not seek to vacate the default judgment until
six months after its entry.
As
a defaulted defendant, Viacom could not participate in the default prove-up
hearings. (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d
381, 385.) The questions of whether
Viacom owed Miller any money and how much was owed were to be resolved by
evidence presented at the prove-up hearing, but whether the questions were
resolved correctly is not a subject of this appeal. A defendant in Viacom’s position, seeking to
vacate a default judgment as void, has no standing to complain about the
evidence introduced at the prove-up hearing.
(Sporn v. Home Depot USA, Inc.
(2005) 126 Cal.App.4th 1294, 1303 (Sporn).)
Viacom
could have raised an insufficiency of the evidence argument by either a motion
for new trial or an appeal from the default judgment (Ostling v. Loring, supra,
27 Cal.App.4th 1731, 1749), but by waiting too long to respond to the default
judgment, it missed the opportunity to do so.
When a defendant is forced by the passage of time to seek to vacate a
default judgment pursuant to section 473, subdivision (d), instead of by motion
for new trial or appeal from the default judgment, we must assume that the
evidence presented at the prove-up hearing was sufficient to support the
judgment.
Viacom
also makes a related argument that the complaint insufficiently stated a cause
of action under section 708.280, subdivision (d), because Perkins Coie did not
allege that Viacom transferred property contrary to court order. This argument likewise fails. When dealing with a motion to vacate brought
pursuant to section 473, subdivision (d), the issue is whether the complaint
was sufficient to apprise the defendant of the plaintiff’s demand, not whether
it properly alleged all elements of a cause of action. (Molen
v. Friedman (1998) 64 Cal.App.4th 1149, 1156-1157; Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 539; >Christerson v. French (1919) 180 Cal.
523, 525 [“a judgment is not void if the court has jurisdiction of the parties
and of the subject matter, irrespective of whether or not the complaint states
a cause of action so long as it apprises the defendant of the nature of the
plaintiff’s demandâ€].)
The
complaint here sufficiently apprised Viacom of Perkins Coie’s demand. Viacom was notified by the complaint that
Perkins Coie had obtained a judgment against Miller that remained unsatisfied,
and was apprised of Perkins Coie’s claims that Miller had a business
relationship with Viacom, that Miller had a right to payment of money due or to
become due from Viacom, that Viacom was liable in damages to Perkins Coie for
money due or becoming due to Miller, and that Perkins Coie sought to satisfy
the underlying judgment by this lawsuit.
These allegations were more than sufficient to put Viacom on notice of
the potential liability it faced by not responding.
We
therefore find that the trial court erred by vacating and modifying the
original default judgment. Since relief
was not warranted pursuant to section 473, subdivision (d), the default
judgment should have stood as originally entered.
II. Section 473.5
“When
service of a summons has not resulted in actual notice to a party in time to
defend the action and a default or default judgment has been entered against
him or her in the action, he or she may serve and file a notice of motion to
set aside the default or default judgment and for leave to defend the
action.†(§ 473.5, subd. (a).) “This section is designed to provide relief
where there has been proper service
of summons (e.g., by substitute service or by publication) but defendant
nevertheless did not find out about the action in time to defend. Typically, these are cases in which >service was made by publication.†(Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter
Group 2012) ¶ 5:420, p. 5-104.3.)
In
moving to set aside the default and default judgment pursuant to section 473.5,
Viacom relied on the declaration of Dow as evidence that Viacom did not have
“actual notice†of the action. Dow’s
declaration acknowledged that the summons and complaint were served on Viacom,
but asserted that because of an apparent “routing error,†Dow’s department,
which responds to “matters of this sort,†did not receive a copy of the summons
and complaint, and that Viacom was “unaware of the summons and complaint.â€
“Actual
notice†has been held to mean “genuine knowledge of the party litigant.†(Rosenthal
v. Garner (1983) 142 Cal.App.3d 891, 895 (Rosenthal).) In >Rosenthal, the Court of Appeal
determined that the defendant, who had been served by publication, did not
obtain actual knowledge of the litigation simply because his attorney (who did
not communicate with his client) was aware of the lawsuit. (Id. at
p. 895.) The court held that section
437.5’s reference to “actual notice†“does not contemplate notice imputed to a
principal from an attorney’s actual notice.â€
(Ibid.) In another case where lack of actual notice
was found, Goya v. P.E.R.U. Enterprises
(1978) 87 Cal.App.3d 886, 891-892 (Goya),
the court determined that even though the defendants received copies of the
summons and complaint, their inability to understand English, and their lack of
understanding of the nature of the legal documents, amounted to a lack of
actual notice.
These
cases are distinguishable from the factual situation presented here. Unlike in Rosenthal,
Viacom was personally served. (See §
416.10, subd. (a); Dill v. Berquist
Construction Co. (1994) 24 Cal.App.4th 1426, 1435.) Furthermore, there is no reason to view
Viacom similarly to the defendants in Goya;
it can safely be presumed that Viacom is sophisticated and knowledgeable in
business and legal-related matters.
Viacom
acknowledges that it was personally served with the summons and complaint on
November 6, 2009, but contends that because Dow’s department never received a
copy of the summons and complaint, Viacom did not have actual knowledge of the
lawsuit. This theory is not supported by
relevant case law. In >Sporn, the court found that the defendant Home Depot had actual notice of
summons “both by service on its
designated agent and by receipt of
the documents by its in-house department . . . .†(126 Cal.App.4th 1294, 1300, italics
added.) The trial court here expressed
skepticism of Viacom’s theory in oral argument, although it did not explicitly
rule whether Viacom had actual notice.
For our part, we are not inclined to find that a summons must go to a
specific department within a corporation before the defendant can be considered
to obtain actual notice of the lawsuit.
(See Cruz, supra, 146 Cal.App.4th 488, 504 [lack of sufficient internal
procedures to ensure that mail received at company offices is routed to
intended recipients is not adequate to show lack of actual notice of lawsuit].)
In
any event, even if we were to give Viacom the benefit of the doubt and find a
lack of actual notice from the November 2009 service, we still would find
relief unwarranted under section 473.5.
A defendant must act with reasonable diligence in seeking to set aside a
default or default judgment. (>Goya,
supra, 87 Cal.App.3d 886, 891; § 473.5, subd. (a) [notice of motion to set
aside the default or default judgment “shall be served and filed within a
reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default
judgment against him or her; or (ii) 180 days after service on him or her of a
written notice that the default or default judgment has been enteredâ€].) That was not done here.
Viacom
learned of the request for entry of default in January 2010, shortly after it
was served. Dow herself received a copy,
and she spoke to Aires (counsel for Perkins Coie) about it. Then, in May 2010, Viacom was served with a
request for entry of default judgment.
Aires and Dow engaged in an e-mail exchange on May 6 and 7, 2010, in
which Aires warned Dow that he would seek a default judgment for the full
amount of the underlying judgment, and suggested to Dow that she explain to the
trial court “why you never sought relief from default and filed an answer to
the complaint.â€
Thus,
by January 2010, Viacom’s legal department was aware of the litigation, and by
May 2010, it had learned of the entered default and the request for default
judgment. But Viacom did not seek to
even participate in the action until a full year later—May 2011—when it finally
filed its motion to set aside the default and the default judgment. We can hardly conceive of any factual
scenario in which a year-long delay to respond to a default and requested default
judgment, by a defendant who is legally sophisticated and well apprised of the
default judgment it faces, could possibly be considered reasonably
diligent. The record here reveals no
basis on which to find that Viacom acted in a reasonably diligent matter. Relief, therefore, was not warranted under
section 473.5.
III. Equitable Authority
Even
when relief is not available on statutory grounds, a defendant may still seek
to vacate a default judgment on equitable grounds. (Rappleyea
v. Campbell, supra,> 8 Cal.4th 975, 981.) A trial court’s equitable decision on a
motion to vacate is reviewed for an abuse of discretion. (Ibid.) This standard, however, is tempered by
considerations that a court’s equitable power is generally narrower than its
power under section 473 (see Jackson v.
Bank of America (1986) 188 Cal.App.3d 375, 386), and that when a default
judgment (as opposed to merely a default) has been obtained, “equitable relief
may be given only in exceptional circumstances†(Rappleyea v. Campbell, supra,
8 Cal.4th at p. 981-982).
Equitable
relief is available only in cases of extrinsic fraud or extrinsic mistake,
though both of these terms are given broad meaning. (In re
Marriage of Park (1980) 27 Cal.3d 337, 342.) Relief is appropriate when the party in
default establishes that extrinsic factors prevented it from presenting its
case. (Ibid.) “‘To set aside a >judgment based upon extrinsic mistake
one must satisfy three elements. First,
the defaulted party must demonstrate that it has a meritorious case. Second[], the party seeking to set aside the
default must articulate a satisfactory excuse for not presenting a defense to
the original action. Last[], the moving
party must demonstrate diligence in seeking to set aside the default once . . .
discovered.’ [Citation.]†(Rappleyea
v. Campbell, supra, 8 Cal.4th at
p. 982.)
The
debate in this case does not center around whether Viacom would have a
meritorious defense. Viacom presented
evidence in its papers that it did not owe Miller money at the time this
lawsuit was filed or thereafter, evidence that makes it likely Viacom could
present a viable defense. The questions,
instead, are whether Viacom presented a satisfactory excuse for failing to
defend against the action and whether it acted diligently in moving to set
aside the default. We find Viacom’s
answers to both of these questions lacking.
Inexcusable
neglect in failing to appear and present a defense precludes equitable
relief. (In re Marriage of Park, supra,> 27 Cal.3d 337, 345; >Jackson v. Bank of America, >supra, 188 Cal.App.3d 375, 386.) Furthermore, “[r]elief on the ground of
extrinsic fraud or mistake is not available to a party if that party has been
given notice of an action yet fails to appear, without having been prevented
from participating in the action.†(>Cruz,
supra, 146 Cal.App.4th 488, 503.)
Perhaps in recognition of this authority, Viacom attempts to lay the
blame for its failure to act entirely at the feet of Perkins Coie’s counsel,
Aires. Viacom claims that Aires “engaged
in a series of deceptions and omissions in order to prosecute the default
judgment . . . while at the same time lulling Viacom into inaction . . .
.†Viacom blames Aires for: mail-serving requests for entry of default on
the eve of a postal holiday; failing to serve notice of a case management
conference; not serving notice of entry of default; telling Dow that he was not
interested in litigating against Viacom; failing to serve notices of default
judgment proceedings and entry of the default judgment; and waiting nine months
after entry of the default judgment to take action to execute on it.
Viacom’s
position is reminiscent of the defendant’s in Sporn. As the court wrote in
that case: “[D]efendant seeks to escape
the results of its own carelessness by an offensive characterization of
plaintiff’s conduct.†(>Sporn, supra, 126 Cal.App.4th 1294, 1300.) As in Sporn,
the plaintiff here did nothing to prevent the defendant from having its day in
court. Perkins Coie properly served
Viacom with the summons and complaint and all other required documents, and
none of its asserted failures to provide notice was improper. After default is entered, the defendant is no
longer an active party and is not entitled to receive further notices.href="#_ftn3" name="_ftnref3" title="">[3] (Id. at p. 1301; § 1010.)
Viacom was given every notice it was entitled to receive. In fact, Aires went beyond what was
required: he spoke to Dow in January
2010 about the case, and he warned her by e-mail in May 2010 that Perkins Coie
was seeking a default judgment. Moreover,
Viacom was served with the request for entry of default judgment in May 2010—a
fact Viacom conspicuously omits from its papers. As such, the entry of default judgment in
July 2010 should have been no surprise.
And, Perkins Coie was under no obligation to try to enforce the judgment
immediately after its entry.
Viacom’s
insinuations that Aires duped Dow into failing to respond to the action by
telling her that he was not interested in litigating against Viacom similarly
lack substance. Relying on such a vague
statement as a reason to refrain from defending a lawsuit, particularly after
notice of request for default has been received, is simply not reasonable. (See Jackson
v. Bank of America, supra, 188
Cal.App.3d 375, 386; Cruz, >supra, 146 Cal.App.4th 488, 507
[“Reliance on a third party constitutes a satisfactory excuse only if it is
reasonableâ€]; Jackson v. Bank of America
(1983) 141 Cal.App.3d 55, 58 [defendant’s “neglect†in failing to file an
answer because it assumed the case was moot “was not of the excusable
varietyâ€].)
Moreover,
as previously explained, Viacom did not diligently seek to set aside the
default and default judgment. Viacom
learned of the default and the requested default judgment no later than May
2010, but took no action in the case until May 2011. This delayed response cannot be considered
diligent. (See Cruz, supra, 146
Cal.App.4th 488, 508 [finding lack of diligence when defendant sought to set
aside default nine months after learning plaintiff was seeking default].)href="#_ftn4" name="_ftnref4" title="">[4] As such, there was no basis to vacate the
default judgment on equitable grounds.
>DISPOSITION
The order granting in part Viacom’s
motion for relief from default and default judgment is reversed, and the
modified and amended judgment entered nunc pro tunc is vacated. The trial court is directed to enter judgment
consistent with the original default judgment entered on July 26, 2010. Perkins Coie shall recover its costs on
appeal.
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS.
BOREN,
P.J.
We concur:
ASHMANN-GERST, J.
FERNS, J.*
id=ftn1>
href="#_ftnref1"
name="_ftn1" title="">[1] Unless otherwise noted, all statutory references are to the
Code of Civil Procedure.
id=ftn2>
href="#_ftnref2" name="_ftn2" title="">[2] The language demanding the lesser of Miller’s right to
payment or the amount necessary to satisfy Perkins Coie’s judgment tracks the
language of section 708.280, which provides that, in a creditor’s suit, if the
requisite elements are proven, the court shall award “the lesser†of (1) the
value of a judgment debtor’s interest in property or amount of debt, or (2) the
amount of the judgment creditor’s judgment that remains unsatisfied.