Opinion
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. No. CGC04431802
JONES, P.J.
Plaintiff Charles Li (plaintiff) voluntarily dismissed his lawsuit against Demas Yan (defendant) on August 20, 2007. Two and one-half years later, he moved to vacate the dismissal, claiming he dismissed the case as a result of “extrinsic fraud and/or mistake[.]” The trial court denied the motion, concluding there was “unreasonable delay in bringing [the] motion.”
Plaintiff appeals. He contends the trial court abused its discretion by denying the motion to vacate because he had a meritorious case and because defendant tricked him into dismissing his lawsuit. Plaintiff also argues he promptly sought relief from the dismissal when he discovered defendant’s misconduct. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Some time before 2000, defendant was working with Tony Fu on a construction project located on 23rd Avenue in San Francisco. In September 2000, defendant agreed to pay Fu a monthly salary and a percentage of either the “appraisal market price” or the sale price when the construction of the building was completed or sold. In July 2003, Fu assigned his right, title, and interest in the proceeds of the September 2000 agreement to plaintiff for $100,000.
Approximately one year later, plaintiff filed a complaint against defendant alleging a breach of contract cause of action and a common count (superior court action). The operative second amended complaint alleged defendant “unilaterally terminated” his September 2000 agreement with Fu and had refused to pay plaintiff “approximately 23.5 months of compensation and 10% of about 1.5 million of the appraised market price” of the building. Plaintiff also alleged defendant was indebted to him for “work, labor, services and materials rendered” at defendant’s “special... request.”
In November 2004, defendant answered the second amended complaint. He claimed his contract with Fu was “canceled by mutual agreement” and that Fu was not entitled to compensation under the contract because he was not a licensed contractor and because he did not perform under the contract “due to delays and problems with building permits.” A few weeks later, defendant notified the trial court that he had filed a petition for bankruptcy (bankruptcy action); this apparently stayed the superior court action. Plaintiff filed a claim in the bankruptcy action. In August 2007, plaintiff dismissed the superior court action with prejudice.
On February 18, 2010, plaintiff moved to vacate the dismissal of the superior court action on the grounds that he dismissed the case as a result of “extrinsic fraud and/or mistake, which denied his day in court.” Specifically, plaintiff claimed he had been “abandoned” by his former attorney and misled by defendant into believing his claims were unenforceable. Plaintiff further claimed that defendant had “prepared and filed” the request for dismissal with prejudice. In a declaration supporting the motion, plaintiff described a complicated series of events prompting him to: (1) sue Fu; (2) end his relationship with the attorney who represented him in the superior court action; and (3) learn the circumstances surrounding his dismissal of the superior court action.
After plaintiff was “abandoned” by his attorney and was “left to fend for himself, ” defendant contacted plaintiff and urged him to dismiss the superior court action. Defendant emailed plaintiff a blank request for dismissal form. Plaintiff signed the form and returned it to defendant. According to plaintiff, defendant then “checked the box to dismiss the [superior court] action with prejudice” and filed the request for dismissal. No one advised plaintiff of the legal consequences of dismissing the Superior Court action with prejudice. Plaintiff claimed that had he “been informed of the legal consequences of the filing [of the] request for dismissal with prejudice, [he] would not have done so.”
At some point in 2008, defendant - who was admitted to the California Bar in December 2008 - gave plaintiff legal advice regarding plaintiff’s lawsuit against Fu. He drafted and filed pleadings on plaintiff’s behalf and “gave [plaintiff] legal strategy[.]” In early 2009, plaintiff discovered defendant had sued him. At a settlement conference on March 20, 2009, an attorney who represented another defendant in that lawsuit advised plaintiff that the assignment of the September 2000 agreement between defendant and Fu was enforceable and that plaintiff “should recover his damages from [d]efendant.” A few days later, plaintiff “terminated [d]efendant’s services” and reinstated his claim in the bankruptcy action. At that point, plaintiff “discovered [d]efendant’s wrongdoing and fraud in dismissing [the superior court action] with prejudice without ever informing [him] and/or explaining the consequences” of the dismissal.
We grant plaintiff’s unopposed request for judicial notice of the following documents: (1) defendant’s second amended complaint naming Fu and others as defendants, San Francisco Superior Court Case No. CGC-08-467500; (2) plaintiff’s March 23, 2009 complaint in the bankruptcy action for injunctive and declaratory relief and to reinstate his creditor proof of claim, United States Bankruptcy Court, Northern District of California, Case No. 09-03048; and (3) the docket for the bankruptcy action. (Evid. Code, §§ 452, subd. (d), 459.)
In June 2009, defendant moved for summary judgment in the bankruptcy action. In September 2009, plaintiff hired an attorney to help him prosecute his bankruptcy claim, to oppose defendant’s motion for summary judgment, and to help him lift the bankruptcy court’s stay of the superior court action. At some point thereafter, the court denied defendant’s motion for summary judgment; on February 8, 2010, plaintiff moved to lift the bankruptcy court’s stay of the superior court action. The bankruptcy court granted the motion. It lifted the stay and directed plaintiff to move for relief from dismissal of the superior court action by February 19, 2010.
Plaintiff moved to vacate the dismissal of the superior court action on February 18, 2010. Defendant opposed the motion. Following a hearing, the trial court denied the motion, concluding plaintiff had unreasonably delayed bringing it.
DISCUSSION
Plaintiff’s sole claim on appeal is the trial court abused its discretion by denying his motion to vacate the dismissal of the superior court action. We review the lower court’s denial of plaintiff’s motion for abuse of discretion. (Robbins v. Los Angeles Unified School Dist. (1992) 3 Cal.App.4th 313, 319 [reviewing motion for relief from judgment pursuant to Code of Civil Procedure section 473 for abuse of discretion]; Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981 (Rappleyea) [reviewing denial of motion to vacate a default on equitable grounds for abuse of discretion.) Under this standard, “we indulge all legitimate and reasonable inferences to uphold the judgment and reverse only upon a showing that the trial court exceeded the bounds of reason in light of all the circumstances. [Citations.]” (Ayala v. Southwest Leasing & Rental, Inc. (1992) 7 Cal.App.4th 40, 44.)
Unless otherwise noted, all further references are to the Code of Civil Procedure.
Section 473, subdivision (b) “provides a means for relief from judgment entered as a result of mistake, inadvertence, surprise, or neglect.” (Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 224.) An application for relief pursuant to section 473, subdivision (b) “must be made... ‘within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order or proceeding was taken.’” (8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial Court, §§ 175, 202, pp. 772, 809.) “The 6-month time limit is akin to a statute of limitations. It reflects a balancing of interests by the Legislature between the policies favoring repose and the finality of judgment and the policy favoring adjudication on the merits.... Similarly, as with a statute of limitations, a court has no authority under [section] 473, [subdivision] (b) to excuse a party’s noncompliance with the 6-month limit. [Citation.]” (8 Witkin, supra, § 175, at p. 773; Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 344-245.)
Plaintiff voluntarily dismissed the superior court action in August 2007. He did not file his motion to vacate the dismissal until February 2010, almost two years after the six-month period set forth in section 473, subdivision (b) expired. “‘[W]hen relief under section 473 is available, there is a strong public policy in favor of granting relief and allowing the requesting party his or her day in court. Beyond this period there is a strong public policy in favor of the finality of judgments and only in exceptional circumstances should relief be granted.’ [Citations.]” (Rappleyea, supra, 8 Cal.4th at pp. 981-982.) To set aside a judgment based on extrinsic fraud or mistake, the moving party must: (1) “‘demonstrate that it has a meritorious case;’” (2) “‘articulate a satisfactory excuse for not presenting a defense to the original action;’” and (3) “‘demonstrate diligence in seeking to set aside the default once... discovered.’ [Citations.]” (Rappleyea, supra, 8 Cal.4th at p. 982; Lee v. An (2008) 168 Cal.App.4th 558, 566 (Lee).)
Even if plaintiff could satisfy the first two elements, he cannot “‘demonstrate diligence in seeking to set aside’” the dismissal after he discovered defendant’s alleged wrongdoing. (Rappleyea, supra, 8 Cal.4th at p. 982; Lee, supra, 168 Cal.App.4th at p. 566 [no diligence where moving party waited more than two years to seek relief]; Stiles v. Wallis (1983) 147 Cal.App.3d 1143, 1150 [denying relief where party moving to set aside default judgment waited 20 months].) Plaintiff’s claim that he “promptly sought judicial relief after discovering [defendant’s] misconduct” in March 2009 ignores the evidence in the record. Plaintiff discovered defendant’s alleged wrongdoing in March 2009 and reinstated his claim in the bankruptcy court. He did not, however, seek to lift the stay imposed by the bankruptcy court until February 2010. Plaintiff has not justified the almost one-year delay and, as a result, we cannot conclude the trial court abused its discretion by denying plaintiff’s motion to vacate the dismissal on the grounds that plaintiff unreasonably delayed bringing the motion. (See, e.g., Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 506 [no equitable relief where moving party offered no evidence it acted diligently in seeking to set aside default judgment].)
DISPOSITION
The court’s May 7, 2010 order is affirmed. Defendant is awarded costs on appeal.
We concur: Simons, J., Needham, J.