Opinion
B200501
8-5-2008
ARARAT BADALIAN, Plaintiff and Respondent, v. MERVYN HILLARD WOLF, Defendant and Appellant.
Mervyn Hillard Wolf, in pro. per.; Law Offices of Marc Appell and Marc Appell for Defendant and Appellant. Charles T. Mathews & Associates, Charles T. Mathews and Deane L. Shanander for Plaintiff and Respondent.
Not to be Published
In this legal malpractice case, appellant Mervyn Hillard Wolf appeals from the default judgment entered against him, after his motion to set aside the entry of default under Code of Civil Procedure section 473 (section 473) was denied by the trial court. Appellant contends that the court abused its discretion in refusing to set aside the default and that the damages awarded are excessive and not supported by the evidence. We affirm the judgment, finding no abuse of discretion and that appellant has waived any challenge to the award of damages.
FACTUAL AND PROCEDURAL BACKGROUND
On November 4, 2005, respondent Ararat Badalian filed suit against appellant for professional negligence, breach of fiduciary duty and breach of contract, arising from appellants failure to file a workers compensation action on respondents behalf. The summons and complaint and related documents were served on appellant by substitute service on November 18, 2005, by leaving a copy with a co-worker and person in charge at appellants office in Encino, California. According to the proof of service, substitute service was made after three attempts to personally serve appellant proved to be unsuccessful.
Respondent submitted his first request for entry of default on March 10, 2006, and though the request was rejected by the clerk for procedural reasons, a copy of the request was mailed to appellant at his office address on March 9, 2006. Respondent submitted a second request for entry of default on May 3, 2006, a copy of which was mailed to appellant on May 2, 2006. Default was entered against appellant on May 24, 2006.
On August 25, 2006, appellant filed a general denial in propria persona, setting forth an address in Calabasas, California. On September 28, 2006, the hearing for respondent to prove up the default was continued to October 31, 2006.
On October 19, 2006, appellant filed a substitution of attorney, substituting Mark Mitchell Geyer in his place. Mr. Geyers office address in Calabasas was the same address that appellant had set forth in his general denial. Appellant also filed a motion to set aside the entry of default under section 473, setting that matter for hearing on November 22. Appellant asserted that he had failed to file an answer to the complaint "due to the perceived FAILURE OF AND OR DEFECTIVE SERVICE coupled with [appellants] emotional and life disruption," as set forth in his and his attorneys attached declarations. Mr. Geyers declaration stated that he had known appellant for more than 20 years; appellant had been "abruptly notified" by The State Bar of California in March 2006 that he would have to cease the practice of law; the State Bar advised appellant in May 2006 that he had until July 10, 2006 to stop practicing law; appellant stopped practicing law on July 1, 2006; and the period of late 2005 through July 2006 had been a period of "extreme personal distress and upheaval" for appellant.
Appellant stated in his declaration that he had practiced law from 1968 until July 1, 2006, when he began a one-year suspension from the practice of law negotiated with the State Bar; he was made aware by the State Bar in March 2006 that the one-year suspension would begin immediately and he petitioned for an additional six months to take care of his cases and clients; the State Bar informed him in May 2006 that his suspension would begin July 10, 2006; this "abrupt" notice left him and his office of more than 40 years in complete shambles and he has been unable to effectively function "as a husband and man" since July 1, 2006; since March 2006, he has not been able to concentrate on personal matters and has used what little strength he had left to consolidate more than 150 matters and help his clients find other lawyers; he has been in treatment for depression since 2005, which has worsened, such that he has been "severely impaired" since July 1, 2006; he recalled that sometime between March and August 2006 he received at his office the summons and complaint or requests for default, though he has no present recollection of ever being personally served because he was so overburdened and inundated that he was unable to function.
Respondent opposed the motion to set aside the entry of default, arguing that appellants failure to timely respond to the complaint was willful and therefore not excusable. At the November 22, 2006 hearing on the motion, appellants attorney presented an undated, half-page declaration from appellants psychiatrist, Oscar Pakier, that is not part of the record on appeal. The trial court denied the motion to set aside the entry of default, finding that appellant had failed to satisfy any statutory basis for setting aside the default.
Appellant then filed a motion for reconsideration, relying on another declaration of Dr. Pakier, which he claimed was faxed to his attorneys office on November 30, 2006. The motion for reconsideration states that the declaration was attached, but no copy of this declaration appears in the clerks transcript. Respondent opposed the motion for reconsideration, noting that the supplemental declaration was not dated and did not identify when appellant had been diagnosed with Bipolar II disorder.
At the hearing on the motion for reconsideration on January 25, 2007, the trial court began by noting that the motion for reconsideration was "based on a declaration of a doctor which was never filed with the court." The court further noted that it had obtained a copy of the declaration after contacting appellants attorney. Respondents attorney stated that his office had never received a copy of the declaration. Appellants attorney stated that he no longer possessed the original declaration, which had been sent to court but never made it into the courts file. The court then stated: "I dont see that that should cause me to change the decision I made. . . . I understand . . . from the doctors declaration [appellant] was having some medical problems or some psychological problems; but as I understand it, the incident in this situation predated the facts or whats set forth in the doctors declaration." The court denied the motion for reconsideration.
Thereafter, respondent submitted documents in support of the requested default judgment, consisting of his case summary, his declaration, his attorneys declaration and various exhibits, including his medical records, copies of which were served by mail on Mr. Geyer. The default prove-up hearing was apparently held on April 30, 2007, though no transcript of this hearing is part of the record on appeal. On May 3, 2007, the trial court entered judgment by default against appellant in the amount of $1,754,302.50, which consisted of $1,020,000 in lost wages, $730,000 for pain and suffering, $352.50 in costs and $3,950 in attorney fees. This appeal followed.
DISCUSSION
I. No Abuse of Discretion in the Denial of Appellants Section 473 Motion.
Appellant contends that the trial court abused its discretion in denying his motion to set aside the entry of default under the discretionary portion of section 473 because he established excusable neglect, and under section 473.5 because he did not have actual notice of the lawsuit in time to defend it. Appellant is correct that we review a trial courts ruling on a motion for relief under section 473 for abuse of discretion. (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 118.) But we find no abuse of discretion here.
The discretionary portion of section 473 provides in pertinent 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." (§ 473, subd. (b).) A party seeking relief under section 473 bears the burden of proof. (In re Marriage of Kieturakis (2006) 138 Cal.App.4th 56, 80.) When relief is sought on the grounds of excusable neglect, the moving party must demonstrate that the neglect was excusable. (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1128.) "The test of whether neglect was excusable is whether `"a reasonably prudent person under the same or similar circumstances" might have made the same error. [Citations.] [Citation.]" (Ibid.)
Appellant argues that he established excusable neglect through his declaration and the declaration of his psychiatrist, Dr. Oscar Pakier, which showed his "inability to cope with or even comprehend the seriousness of the lawsuit which had been served upon him," due to his psychological impairments.
As an initial matter, as the parties note, the original of Dr. Pakiers declaration never made it into the court file, though the court apparently considered a copy of the declaration at the hearing on the motion for reconsideration. We granted appellants request to augment the record on appeal with a declaration by Dr. Pakier dated November 30, 2006. Respondent subsequently moved to strike this declaration from the appellate record, pointing out that it was never served on respondent, that the authenticity of the signature appears questionable, and that the trial court did not consider the declaration. We deny the motion to strike the declaration from the record on appeal. But even considering the declaration, the outcome would not change because, like appellants declaration, Dr. Pakiers declaration does not address the relevant timeframe.
The summons and complaint were served on appellant, by substitute service, on November 18, 2005. Although appellants declaration established that he was being treated for depression in 2005, he was still a practicing attorney handling approximately 150 matters at the time he was served. His declaration states that he did not have trouble focusing on personal matters until March 2006, when he learned from the State Bar that his one-year suspension from the practice of law would begin immediately, and that he did not become "severely impaired" until July 1, 2006. Each of these dates substantially postdates service of the summons and complaint and does not explain why appellant failed to timely respond to the complaint when it was served in November 2005. Moreover, the fact that appellant ultimately filed a general denial in propria persona on August 25, 2006 undercuts his assertion that he became severely impaired on July 1, 2006. In any event, appellants declaration did not establish excusable neglect.
Appellants reliance on Kesselman v. Kesselman (1963) 212 Cal.App.2d 196 is misplaced. In that divorce case, the trial court granted the husbands relief from default under section 473. In affirming, the appellate court found that the trial court could reasonably conclude the husbands "paralytic stroke or strokes" left him in a deteriorated mental condition such that he was not capable of understanding legal concepts and could be unduly influenced by his wife to ignore answering the complaint. (Kesselman v. Kesselman, supra, at pp. 207-208.) Moreover, the appellate court noted: "`The rules of practice applicable to divorce actions differ in many respects from those which govern other actions. In an action for divorce, upon very slight showing the court will set aside a default, if application for relief be made in due time. . . . It is the duty of the court, representing the state, in accordance with the letter and policy of the law, to guard strictly against fraud, collusion, or imposition when the husband or wife seeks to dissolve the bonds which bind them together." (Id. at p. 207.)
The factual bases upon which appellant relies in arguing error here are significantly different from those in Kesselman. Of particular significance is the trial courts finding here that appellant did not demonstrate debility at the relevant time—i.e., when the summons and complaint were served—to support setting aside the default. Nor was there any showing that appellant was somehow falsely induced into sitting on his rights.
Appellant also argues that even if his neglect was inexcusable, his default should still have been set aside under section 473.5, because he never received actual notice of the lawsuit in time to defend it. But appellant never sought relief from default under section 473.5. Thus, he has waived this argument on appeal. (Bell v. Farmers Ins. Exchange (2004) 115 Cal.App.4th 715, 739.) Even if there were no waiver, section 473.5, subdivision (c) precludes relief from default if the lack of actual notice was caused by the defendants inexcusable neglect. As we have already found, appellants neglect was inexcusable.
Accordingly, there was no abuse of discretion in the trial courts denial of appellants motion to set aside the entry of default.
II. Appellants Challenge to the Amount of Damages is Waived.
Appellant also challenges the amount of damages awarded, claiming the damages are excessive and not supported by the evidence. But we are unable to address the merits of appellants challenge because he has not provided us with an adequate record to do so. Appellant has not included as part of the record on appeal a copy of the reporters transcript of the default prove-up hearing. The default judgment indicates that the trial court considered respondents "testimony and other evidence." Appealed judgments and orders are presumed correct, and error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564. "Consequently, [appellant] has the burden of providing an adequate record. [Citation.] Failure to provide an adequate record on an issue requires that the issue be resolved against plaintiff." (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.)
DISPOSITION
The judgment is affirmed. Respondent is entitled to his costs on appeal.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J. --------------- Notes: Respondent also sued and took the defaults of Appell & Wolf and Mervyn H. Wolf, a professional law corporation, but the default judgment is only against appellant. While not directly relevant to this appeal, it appears that respondent sent copies of the multiple requests for default of these entities to appellants office.