Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BC385406. Ronald M. Sohigian, Judge.
Law Offices of Parnell Kirby and Parnell Kirby for Defendant and Appellant.
Daniel M. Graham for Plaintiff and Respondent.
CHAVEZ, J.
OneUnited Bank (appellant) appeals from an order granting Tracy Allen’s (respondent) motion for relief from judgment pursuant to Code of Civil Procedure section 473, subdivision (b) (hereafter section 473(b)). We affirm.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
CONTENTIONS
Appellant contends that respondent’s four-month delay in seeking relief from judgment was not reasonable, and that respondent failed to present evidence of mistake, inadvertence, surprise or excusable neglect as required under section 473(b).
FACTUAL AND PROCEDURAL BACKGROUND
1. The complaint and demurrer
On February 13, 2008, respondent, in pro. per., filed a complaint asserting one cause of action for “wrongful termination against public policy.” The complaint alleged that she worked as a manager in appellant’s real estate section. It further alleged that her termination was a retaliatory act based on her refusal “to be dishonest as a witness for [appellant] in a labor board hearing” and her complaints that appellant was making loans without fixed lending criteria in violation of the law.
On April 2, 2008, appellant filed a demurrer to respondent’s complaint. Respondent failed to file an opposition to appellant’s demurrer. The demurrer was heard on May 7, 2008, and respondent failed to appear at the hearing or provide an explanation for her absence. The trial court took the matter under submission.
The trial court sustained in part and overruled in part appellant’s demurrer and allowed respondent five days to amend. Appellant served respondent with the court’s order on May 9, 2008.
2. Entry of judgment against respondent
Respondent did not file an amended complaint as directed by the trial court. Thus, on May 21, 2008, appellant requested entry of judgment against her. While appellant served respondent with the request, appellant did not make an ex parte application and no court appearances were scheduled in connection with the request for entry of judgment. The trial court signed the judgment on June 12, 2008, and served its notice of entry of judgment on the parties. Appellant also served respondent with notice of entry of judgment on June 19, 2008.
3. Respondent’s actions after filing the complaint
Respondent began looking for legal counsel to represent her in the action in March 2008. At the time of the May 7, 2008 hearing on the demurrer, she had not yet found an attorney.
Respondent was given five days leave to amend her complaint. Thus, the amended complaint was due on May 12, 2008. Appellant’s proof of service for the notice of ruling on the demurrer was dated May 9, 2008. Respondent did not receive the notice of ruling until May 14, 2008, two days past the date her amended complaint was due to be filed. Having realized that the five-day period to amend the complaint had passed, respondent continued looking for legal counsel. She planned to attend the case management conference scheduled for June 18, 2008, to request more time. Respondent arrived at Los Angeles County Superior Court at 8:00 a.m. on June 18, 2008, unaware that her case had been dismissed. Due to the dismissal of her case, respondent was not able to make an appearance or request more time, as she had intended.
4. Respondent’s efforts to obtain counsel
Between March and October of 2008, respondent spoke to at least 13 attorneys, explaining the facts and details of her case and providing necessary written information. Respondent first contacted an attorney on March 19, 2008. That attorney informed respondent that she would be sending respondent a questionnaire designed to elicit more information about the case. It was not until May 1, 2008, that this attorney informed respondent that, due to her busy schedule, she would not be able to take the case.
Respondent contacted a different attorney on April 29, 2008. On May 5, 2008, that attorney declined the case but sent respondent an email with four referrals. Respondent contacted each of the four referrals and between May 8 and May 23, 2008, respondent contacted three additional attorneys. All seven of these attorneys declined to represent respondent due to either their trial schedules or their view of the case.
On June 9, 2008, respondent contacted yet another attorney whom she located through a referral service. This attorney declined but referred another attorney. Upon contacting the referral, respondent was told she would have to pay a $5,000 retainer which she could not afford, having been out of work for 13 months. However, this attorney informed respondent that she needed to file a “leave to amend.” She located the legal document on-line and submitted it on June 13, 2008. However, because the case had been dismissed without her knowledge, respondent’s request for leave to amend was never received by the court.
After attempting to attend the case management conference and discovering that her case had been dismissed, respondent continued her efforts to obtain counsel and determine whether she could redeem her case. In early July 2008, she was in contact with four more attorneys. On July 28, one attorney informed her that he did not have time to take her case due to his workload. On August 8, 2008, another said he needed more time to review her options. On or about August 18, 2008, respondent contacted Daniel M. Graham, her current attorney of record. On August 21, 2008, Graham agreed to represent respondent in an effort to get the case placed back on the civil active docket. However, due to the economic consequences resulting from her dismissal from her job, appellant could not pay Graham’s minimal retainer request until October 2, 2008.
5. Respondent’s motion to set aside default
Respondent’s motion to set aside the dismissal pursuant to section 473(b) was filed on October 22, 2008. Appellant opposed the motion. A hearing was held on November 17, 2008. The court expressed concern that appellant had not given respondent notice that it was making a request for dismissal:
“The Court: Did you submit any document showing that you had given notice to [respondent] that you were making the application [for dismissal]?
“[Appellant’s counsel]: I submitted the actual proposed judgment itself and also served that on her but no, no ex parte application.
“The Court: So you mailed the judgment, the proposed judgment to her in May, so she didn’t know when you were going to be presenting it to me; right?
“[Appellant’s counsel]: No, Your Honor. Your notice of entry of judgment of June 12, 2008, it recognizes that a proposed judgment of dismissal was lodged with your court and that Your Honor signed it on that date. There was no ex parte application.
“The Court: So there were no appearances at all.”
After hearing respondent’s argument that there was no prejudice to the appellant, and that the motion was filed within the six-month time frame permitted by section 473(b), the court granted respondent’s motion. However, the court made clear its concern with “the behavior of [respondent] with respect to the proper maintenance of this lawsuit.” The court made a stern warning to respondent that “the delays in the case have been caused by the [respondent] in allowing the complaint to go unamended following the order on the 7th of May, 2008.” The court ordered respondent to get her pleading on file by December 5, 2008, and set a case management conference for 8:30 a.m. on February 5, 2009.
On December 2, 2008, appellant appealed from the order.
DISCUSSION
I. Appealability and standard of review
An order vacating a default judgment pursuant to section 473(b) is appealable under section 904.1, subdivision (a)(2). (Moghaddam v. Bone (2006) 142 Cal.App.4th 283, 287.) We do not disturb a ruling on a motion for discretionary relief under section 473 unless a clear abuse of discretion is shown. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.) We give substantial deference to the trial court’s decision, and affirm the order “unless it is arbitrary, capricious, whimsical, or demonstrates a ‘“manifest abuse exceeding the bounds of reason....”’ [Citations.]” (In re Marriage of Chakko (2004) 115 Cal.App.4th 104, 108.)
“With respect to setting aside a default judgment,... it is the policy of the law to have every litigated case tried upon its merits, and it looks with disfavor upon a party who, regardless of the merits of the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary. [Citation.]” (Orange Empire Nat’l Bank v. Kirk (1968) 259 Cal.App.2d 347, 352.) The trial court’s order granting relief under section 473(b) is presumed to be correct, and appellant has the burden of overcoming this presumption by demonstrating error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)
II. The trial court did not abuse its discretion in granting relief under section 473(b)
Appellant attacks the trial court’s decision on two grounds: first, that the four-month delay in seeking relief from judgment was not reasonable; and second, that there was no evidence of mistake, inadvertence, surprise or excusable neglect as required under section 473(b). We address each contention below, and conclude that the trial court’s decision is supported by the law and the facts.
A. Four-month delay in seeking relief
Appellant cites Elston v. City of Turlock (1985) 38 Cal.3d 227, 234 and Kandall v. Barker (1988) 197 Cal.App.3d 619, 624 for the proposition that a threshold requirement for discretionary relief under section 473(b) is the moving party’s diligence. Appellant points out that respondent waited over four months after judgment to file her motion for relief.
Section 473(b) does not foreclose a motion for relief filed four months after judgment. The statute provides that the 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.” Thus, as long as the motion is made within six months, the trial court has the discretion to determine what is “reasonable” under the circumstances.
The cases cited by appellant do not dictate a finding that respondent’s four-month delay was unreasonable under the circumstances of this case. Appellant first cites Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523. In that case, the moving party delayed more than three months after receiving notice of its default, and “furnished no explanation in the trial court, either by affidavit or testimony, for its dilatory procedure.” (Id. at p. 528.) In determining that the trial court abused its discretion in granting relief under such circumstances, the Supreme Court noted that it found no 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.” (Id. at p. 529.)
However, in this case, respondent’s delay was not “unexplained.” Instead, respondent provided a declaration which contained a detailed timeline of her interactions with numerous attorneys as she struggled to find assistance with her case. Her declaration included details such as the names of the attorneys with whom she spoke; the dates on which she spoke with them; the information those attorneys required of her; and the amount of time it took those attorneys to get back to her with an answer. While appellant attempts to paint these efforts as “half-hearted,” respondent’s declaration shows otherwise. Many of the attorneys had busy schedules, needed time to review the facts of her case, or required follow-up communications, which resulted in delays lasting several weeks before she received a final answer. And, while waiting to hear from certain attorneys, she continued in her efforts to contact others. Considering that she was seeking an attorney after a dismissal of her case had been entered, it is not surprising that many attorneys were reluctant to take it on. In sum, respondent’s declaration supports the trial court’s determination that respondent exhibited the required diligence.
The other cases cited by appellant on this point are distinguishable for the same reason. (See Huh v. Wang (2007) 158 Cal.App.4th 1406, 1422 [“Here, appellant offered no evidence explaining the delay in seeking relief. Given the absolute failure of proof on this point, there is no basis for granting relief”]; Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1185 [“The record is devoid of any evidence justifying such a long delay. Indeed, based on the record before us, the delay in filing appears to have been largely a tactical decision”]; Billings v. Health Plan of America (1990) 225 Cal.App.3d 250, 254 [“No reasons were given in the declaration to explain the delay in filing the section 473 motion”].)
Respondent provided the trial court with an explanation for her four-month delay in filing the motion for relief under section 473(b). The trial court’s determination that this time lapse was “reasonable” under the circumstances was not an abuse of its discretion.
B. Evidence of mistake, inadvertence, surprise, or excusable neglect
Appellant next argues that respondent did not present any evidence that section 473(b) relief should be granted. In sum, appellant argues that: respondent’s belief that she could appear at a case management conference on June 18, 2008, and ask for an extension of time is not the type of “mistake” contemplated by section 473(b); being overwhelmed by the legal system after filing a case in pro. per. does not constitute the type of “inadvertence” contemplated by section 473(b); and being surprised at how difficult and expensive attorneys can be is not the type of “surprise” contemplated by section 473(b). Appellant’s position is that the record shows nothing more than inexcusable neglect.
Our role is only to determine whether the trial court has exhibited a manifest abuse of discretion exceeding the bounds of reason. As set forth above, the trial court appeared concerned that respondent did not receive notice or an opportunity to be heard regarding the dismissal of her case. Respondent attested to the fact that she appeared at court on June 18, 2008, completely unaware that her case had been dismissed six days earlier. Her surprise at finding that her case had been dismissed warrants section 473(b) relief.
In addition, as set forth above, respondent’s declaration shows that her difficulties in obtaining an attorney did not result from her “lackadaisical attitude,” as appellant suggests. She diligently contacted attorneys starting shortly after she filed her complaint. However, all the attorneys she contacted prior to late August 2008 were unavailable or unwilling to take on her case. The trial court did not err in implicitly determining that, under the circumstances, her neglect of the matter was excusable.
DISPOSITION
The order is affirmed. Respondent is awarded the costs of appeal.
We concur: BOREN, P. J., ASHMANN-GERST, J.