Opinion
F072916
02-08-2017
ANTOIAN GRIFFIN, Plaintiff and Appellant, v. ALEX BERLIN, Defendant and Respondent.
Antoian Griffin, in pro. per., for Plaintiff and Appellant. McCormick, Barstow, Sheppard, Wayte & Carruth, Marshall C. Whitney and Gary A. Hunt for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12CECG01065)
OPINION
APPEAL from an order of the Superior Court of Fresno County. Jeffrey Y. Hamilton, Jr., Judge. Antoian Griffin, in pro. per., for Plaintiff and Appellant. McCormick, Barstow, Sheppard, Wayte & Carruth, Marshall C. Whitney and Gary A. Hunt for Defendant and Respondent.
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Appellant, Antoian Griffin, filed a complaint against respondent, Alex Berlin, alleging legal malpractice and breach of fiduciary duty. Respondent moved for, and was granted, summary judgment and judgment was entered on November 8, 2013. Appellant appealed and we affirmed the judgment in November 2014. (Griffin v. Berlin (Nov. 18, 2014, F068780) [nonpub. opn.].)
On September 2, 2015, appellant moved to set aside the judgment under Code of Civil Procedure section 473, subdivision (b). The trial court denied the motion on the ground that it was filed more than six months after judgment was entered. The court further found there was no evidence of fraud and the judgment was not void.
All further statutory references are to the Code of Civil Procedure. --------
Appellant challenges the trial court's ruling on the grounds that mistakes were made and he was misled by the court. Appellant further contends that respondent "defaulted and perjured" himself and that appellant "did not get a fair hearing."
The trial court correctly denied appellant's motion to set aside the judgment. Accordingly, the order will be affirmed.
DISCUSSION
Under section 473, subdivision (b), "[t]he court may, upon any terms as may be just, relieve a party ... from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." However, the application must "be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken."
This six-month time period is mandatory. Therefore, unless an application is made within the six-month period, a court has no authority to grant relief under section 473, subdivision (b). (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340.)
Here, appellant's application was made almost two years after judgment was entered. Thus, the trial court had no authority to grant appellant relief under section 473, subdivision (b), and correctly denied appellant's motion.
Appellant's argument that the judgment is void is also without merit. Appellant's supporting claims of error and fraud are not supported by the record.
Appellant states his argument is based on the declaration of counsel for respondent filed in opposition to appellant's motion to set aside the judgment. Appellant contends respondent's counsel committed perjury as evidenced by the allegedly false statements in this declaration.
Appellant first takes issue with the statement that "[n]o default judgment has ever been entered. [Respondent] answered, timely, [appellant's] Third Amended Complaint in July of 2013." According to appellant, respondent "never answered [the complaint] timely."
Respondent filed a demurrer to appellant's complaint. A hearing was originally scheduled for August 29, 2012, but was continued to September 13, 2012. However, appellant voluntarily filed a first amended complaint on August 15, 2012. Accordingly, the original complaint was superseded and the demurrer was taken off calendar as moot.
It appears that appellant does not understand the effect of his having voluntarily filed an amended complaint before the trial court ruled on the demurrer to the original complaint. Since the original complaint was superseded, respondent was not required to file an answer to that complaint. Following multiple demurrers and successive amended complaints, respondent filed an answer to the third amended complaint.
Also, contrary to appellant's position, respondent's counsel correctly stated that no default was ever taken. Although appellant submitted, and the trial court received, a request for default on June 1, 2015, that request was denied on the ground that judgment was previously entered on November 8, 2013.
Appellant further objects to the trial court having continued the hearing on the demurrer to the original complaint without a noticed motion. According to appellant, the lack of a noticed motion misled him to his detriment. However, any alleged procedural errors in the calendaring of the demurrer to the original complaint are irrelevant. The first amended complaint was filed before the demurrer was heard or ruled on. Thus, that demurrer was rendered moot.
In sum, appellant's motion to set aside the judgment was untimely. Further, the fraud claims have no support in the record. Thus, appellant has not met his burden of demonstrating reversible error. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.)
DISPOSITION
The order is affirmed. Respondent is awarded his costs on appeal.
/s/_________
LEVY, Acting P.J. WE CONCUR: /s/_________
KANE, J. /s/_________
DETJEN, J.