Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV147919
Duffy, J.
In July 2009, Josh Gilliland, Gabriel Diani, and Jordan Sledge (collectively, Plaintiffs) sued their stepfather, Robert Jenkins, seeking a judicial declaration that they, not Jenkins, were entitled to the proceeds from three life insurance policies procured by their mother. The suit named the insurer as a necessary party. A default and default judgment were entered against him. Jenkins indisputably became aware of the suit and its status in late December 2009; yet he waited more than three months to file a motion for relief from default judgment, and did not explain this delay in his moving papers. The court granted the motion for relief.
On appeal, Plaintiffs argue that the court erred in granting the motion without any showing by Jenkins that he had acted with due diligence in filing the motion, such diligence being a requirement under Code of Civil Procedure sections 473 and 473.5. We conclude that there was no required showing of diligence by Jenkins in bringing the motion. The court therefore abused its discretion in granting relief from the default judgment and we will reverse the court’s order.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
The facts relevant to this appeal and stated below are derived from the papers filed in support of and in opposition to Jenkins’s motion for relief from default.
On July 21, 2009, Plaintiffs filed a complaint for declaratory relief against Jenkins and Northwestern Mutual Life Insurance Company. They alleged that their mother, Jessicah Jenkins (decedent), died in January 2009; had been separated from her husband, Jenkins, at the time of her death; was the owner of three life insurance policies issued by Northwestern; and had named Plaintiffs as joint beneficiaries under the insurance policies. Plaintiffs alleged further that Northwestern did not dispute Plaintiffs’ entitlement to the benefits ($237,425) from the policies, but that Jenkins had asserted a claim, which they disputed. Plaintiffs sought a judicial declaration that they were the sole owners of the benefits from the insurance policies and an order that Northwestern release those benefits to them.
Northwestern filed a “cross-claim [sic: cross-complaint] for interpleader and declaratory relief” in October 2009. (Capitalization and emphasis omitted.) Northwestern alleged that Plaintiffs were the named beneficiaries under the three life insurance policies it issued to decedent; Jenkins had made a claim under the policies shortly after decedent’s death; and because of the conflicting claims, it was interpleading the face value of the collective policies, with interest, into the court.
After Jenkins was served by publication and failed to respond, Plaintiffs obtained a default and default judgment against him on November 16 and December 24, 2009, respectively. On December 28, 2009, Northwestern’s attorney, Lisa Passalacqua, received a telephone call from Jenkins in which he told her that he had not known about the lawsuit and gave her his current address. Passalacqua sent Jenkins copies of the complaint and cross-complaint the same day, and sent him a copy of the default judgment and supporting papers the next day (when she, herself, received them in the mail).
The first contact with the court in this case by Jenkins appears to have occurred on February 16, 2010. On that date, Jenkins appeared at a case management conference. According to Plaintiffs’ attorney, Jerry Fong, who attended the conference telephonically, “the Court advised Mr. Jenkins that he needed to find and hire an attorney immediately to take whatever legal steps are necessary to protect his rights in this case. The Court then continued the case management conference to March 16, 2010” for Jenkins to accomplish this task.
On February 24, 2010, Roger Wintle, an attorney retained by Jenkins, wrote to Fong to request that he stipulate to setting aside the default judgment. Fong responded by letter on March 2, 2010, indicating that he needed more information about Jenkins’s contentions—including information about his diligence in responding to the default judgment after he became aware of it—before he could agree or disagree to Wintle’s proposed stipulation. Fong did not receive a response to his letter.
On March 16, 2010, Fong attended the continued case management conference telephonically. Jenkins made no appearance at the conference, either personally or through his counsel. One week later, a default on the cross-complaint was entered against Jenkins.
Jenkins, through his counsel, filed a motion to set aside default judgment pursuant to section 473, subdivision (b), and 473.5, on April 7, 2010. He urged that the motion should be granted because (1) he did not receive actual notice of the lawsuit through the service by publication of the complaint; (2) he first became aware of the lawsuit when he telephoned Passalacqua on a date after the default had already been entered; (3) the court is empowered to grant relief from a default or default judgment where service has not resulted in actual notice to the party in time to defend the action; and (4) the law strongly favors a trial of disputes on their merits. Plaintiffs opposed the motion, inter alia, on the ground that Jenkins had not shown that he was diligent in seeking relief from the default and default judgment after he allegedly first learned about the suit in late December 2009.
Jenkins apparently did not file a reply in support of his motion.
The court after a hearing granted the motion to set aside default and default judgment. Plaintiffs filed a timely notice of appeal. The order setting aside default and default judgment is appealable. (Moghaddam v. Bone (2006) 142 Cal.App.4th 283, 287.)
The order is not without ambiguity. Jenkins phrased his motion as one seeking to set aside the default judgment without reference to setting aside the default itself. The order similarly referred only to the default judgment without reference to the default previously entered. But the order indicated further that Jenkins would be entitled to file responsive pleadings within 10 days after the order. We will construe the order liberally as setting aside both the default and default judgment, since Jenkins would not have been permitted to file responsive pleadings were the court to have set aside the default judgment, only.
DISCUSSION
I. Standard of Review
“A motion seeking such relief [from default under section 473] lies within the sound discretion of the trial court, and the trial court’s decision will not be overturned absent an abuse of discretion. [Citation.] However, the trial court’s discretion is not unlimited and must be ‘ “exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.” ’ [Citations.]” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233, superseded by statute on another point as stated in Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 64-65; see also Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257; Anastos v. Lee (2004) 118 Cal.App.4th 1314, 1319 [motion for relief under section 473.5 also reviewed for abuse of discretion].) In view of the policy favoring trials on the merits, doubts in the application of section 473 are resolved in favor of the party seeking relief from default, and “a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits. [Citations.]” (Elston, at pp. 233-234; see also Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.) But while significant discretion is vested in the trial court, its decision on a request for relief under section 473 “must rest upon sound considerations consistent with the showing made for the relief sought. [Citations.]” (Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 525-526 (Benjamin).)
Plaintiffs contend that a de novo standard of review applies in this case. In support of this proposition, they cite two cases. Neither case is apposite. In Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799-801, the high court held that the determination of whether a transaction is usurious is a mixed question in which the trial court’s determination of the relevant facts is reviewed deferentially but the ultimate conclusion regarding usury (applying the law of usury to the facts) is subject to independent review. We are not faced with such a mixed question. And in Rodrigues v. Superior Court (2005) 127 Cal.App.4th 1027, 1032 this court held that in the context of the mandatory provisions of section 473, subdivision (b), under which the court must grant relief where the attorney for the defaulting party files an affidavit of fault, since the sole question—whether the statute applied where the affidavit of fault was signed by a non-California attorney—was entirely a question of law, we would review the order de novo. The issue before us is not solely a question of law, and Rodrigues is therefore not controlling.
There was no respondent’s brief filed on behalf of Jenkins. We therefore “decide the appeal on the record [and on] the opening brief... by the appellant.” (Cal. Rules of Court, rule 8.220(a)(2); see also D.H. Williams Construction, Inc. v. Clovis Unified School Dist. (2007) 146 Cal.App.4th 757, 763 [where respondent failed to file brief, “we will address [appellant’s] contentions without setting forth the traditional statement of respondent’s position on the issues”].)
II. Order Vacating Default and Default Judgment
Section 473, subdivision (b) provides in relevant part: “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.) Further, section 473.5, subdivision (a) provides in part: “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. The notice of motion 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 entered.” (Italics added.) Because the same “reasonable time” language requiring diligence in the filing of the set-aside motion is found in both sections 473 and 473.5, courts have held that “the same interpretation should be given to the reasonable time requirement set forth in both sections.” (Schenkel v. Resnik (1994) 27 Cal.App.4th Supp. 1, 4.)
The court’s discretion to set aside a default or default judgment may be “exercised only after the party seeking relief has shown that there is a proper ground for relief, and that the party has raised that ground in a procedurally proper manner, within any applicable time limits.” (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488 495.) The party moving to set aside the default bears the burden of establishing the merits of the motion. (Luz v. Lopes (1960) 55 Cal.2d 54, 62.) The movant has the “ ‘double burden... [of showing] a satisfactory excuse for his default, and... diligence in making the motion after discovery of the default.’ [Citation.]” (Kendall v. Barker (1988) 197 Cal.App.3d 619, 625.)
The necessity of the moving party showing diligence in moving for relief under section 473 was explained in Benjamin, supra, 31 Cal.2d 523, where the court reviewed an order setting aside a default and default judgment. The defendant corporation had moved for relief approximately three and one-half months after the default judgment was entered. (Id. at p. 524.) Although the high court did not fault the defendant’s factual showing excusing its conduct up to the time the default was entered (id. at p. 527), it found the corporation’s showing of diligence lacking. There was evidence that the corporation’s officers knew about the default on the day it was entered but the defendant waited more than three months to take any action to attempt to vacate it, and there was “no explanation... either by affidavit or testimony, for its dilatory procedure.” (Id. at p. 528.) The high court, in reversing the trial court’s order, explained: “ ‘Under this statute, in addition to being made within the six months’ period, the application must be made within “a reasonable time, ” and what is a reasonable time in any case depends upon the circumstances of that particular case.’ While in ‘the determination of that question, a large discretion is necessarily confided to [the trial] court’ [citation], there must be some showing—some evidence—as the basis for the exercise of such discretion. [Citation.]... [¶] Courts do not relieve litigants from the effects of mere carelessness. Defendant has not cited, nor has independent research disclosed, any case in which a court has set aside a default where, in making application therefor, there has been an unexplained delay of anything approaching three months after full knowledge of the entry of the default. On the contrary, the proper procedure appears to involve the presentation of some explanation, by affidavit or testimony, of any extended delay, and the court then determines whether such explanation may be deemed sufficient to justify the granting of the relief sought.” (Id. at pp. 528-529.) Finally, the court did not excuse the defendant’s failure to show diligence because the plaintiff had filed no counteraffidavits; it noted that, while the law is clear that where the plaintiff makes no showing of prejudice, “very slight evidence will be required to justify a court in setting aside the default’ [citation], such rule does not obviate a showing of compliance with the ‘reasonable time’ requirement in making the motion.” (Id. at p. 531; see also Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 900 [law does not permit setting aside judgment where there is inexcusable neglect, “simply because the other side has not been prejudiced”].)
Here, although we conclude that Jenkins offered no evidence justifying the delay of over three months in filing the motion, even were there “slight evidence” of justification in the record, the rule enunciated in Benjamin, supra, 31 Cal.2d at page 531 would not obtain. Plaintiffs offered evidence in opposition to the motion that they were in fact prejudiced by Jenkins’s inaction, in that after the default judgment was entered, they resolved the remainder of the case with Northwestern by agreeing to pay it $11,000 in fees and costs, obtained a distribution of the insurance proceeds, and paid Northwestern the agreed-upon sum.
Subsequent cases have similarly rejected claims where the defendant had failed to make an evidentiary showing justifying an unexplained delay in the filing of a motion for relief under section 473. For instance, in Ludka v. Memory Magnetics International (1972) 25 Cal.App.3d 316, 321-322, the court found an absence of diligence justifying denying relief—notwithstanding a contention of improper service of process—where the defendant waited over three months after learning that its default had been entered to file its motion.
In Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1180, the defendant’s insurer filed motions to intervene and to set aside default and default judgment one day before the jurisdictional six-month limitation under section 473 expired. The trial court granted the motions and the appellate court held that this was an abuse of discretion because the insurer failed to show diligence. (Stafford, at p. 1187.) Relying on Benjamin, supra, 31 Cal.2d 523, the court concluded that the insurer failed to provide an adequate excuse for the extended delay in seeking relief from the default and default judgment (Stafford, at p. 1183) and rejected further the insurer’s claim that the absence of prejudice shown by the plaintiff absolved it from presenting a showing of diligence (id. at p. 1187). (See also Huh v. Wang (2007) 158 Cal.App.4th 1406, 1421-1422 [diligence not shown where party seeking relief waited three and one-half months to file motion without adequate explanation for delay]; Kendall v. Barker, supra, 197 Cal.App.3d at pp. 624-626 [court abused its discretion by granting relief from default where there was unexplained delay of over five months in filing motion].)
Here, Jenkins did not satisfy the diligence requirements of section 473 and 473.5. It is undisputed that he became aware of the lawsuit on December 28, 2009, four days after the default judgment was entered, from speaking with Northwestern’s counsel, Passalacqua. Although the record is unclear whether Passalacqua informed Jenkins during that telephone call that Plaintiffs had entered a default and default judgment against him on the complaint, it is clear that he would have known of the default on or about December 30, since Passalacqua sent him the default papers on December 29 to the address he had given her. The first objective effort that Jenkins made to address the default occurred almost two months later, on February 24, 2010, when his attorney sent a letter to Plaintiffs’ counsel seeking a stipulation to set aside the default judgment. After a prompt response on March 2 by Plaintiffs’ counsel, Fong, Jenkins delayed over a month longer before finally filing his set-aside motion on April 7. And this delay occurred notwithstanding the fact that Jenkins, appearing as a self-represented litigant at a February 16 case management conference, was advised by the court that he needed to take immediate steps to hire counsel to protect his rights.
The motion by Jenkins provided nothing to explain this delay of more than three months from the time he became aware of the default to the date he filed the motion. The only statement in his declaration in any way relating to the delay was the following: “By the time I learned that I had been named in this lawsuit the Plaintiffs had taken a default against me and I began to search for an attorney who could represent me in this matter.” This is no explanation at all for the three-plus months’ delay in filing the motion. Under Benjamin, supra, 31 Cal.2d 523, and later cases following that decision, Jenkins did not satisfy the “reasonable time” requirements of section 473 and 473.5. (See Kendall v. Barker, supra, 197 Cal.App.3d at p. 625 [relief under section 473 generally denied where there is unexplained delay of over three months]; Billings v. Health Plan of America (1990) 225 Cal.App.3d 250, 258, fn. 5, superseded by statute on another ground as stated in Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 617: “It has long been the law in California that a party must be prompt in seeking relief under section 473. Delays of three months or more routinely result in denial of relief where there is no explanation for the delay.”) The court therefore abused its discretion by granting the motion to set aside the default and default judgment where Jenkins failed to make the requisite statutory showing of diligence.
DISPOSITION
The order setting aside the default and default judgment is reversed.
WE CONCUR: Rushing, P. J., Premo, J.