Opinion
NOT TO BE PUBLISHED
APPEAL from judgments and order of the Superior Court of Los Angeles County No. BC333421. Robert Hess, Judge.
Morris & Associates, James G. Morris, Brandon C. Murphy, and Le’Roy T. Roberson for Defendant and Appellant.
Curd, Galindo & Smith and Joseph D. Curd for Plaintiffs and Respondents.
Pacific Atlantic Law Corporation and Chinye Uwechue-Akpati for Intervener and Respondent American Economy Insurance Company.
CHAVEZ, J.
Micromark International, Inc. (appellant) appeals from two default judgments entered against it: (1) a default judgment in favor of B Five Corporation, Aris Sarigianides, and Dimitrios Yortzides (collectively “respondent”) for $2,376,052.40; and (2) a default judgment in favor of American Economy Insurance Company (American Economy) for $68,055.75. Appellant also challenges an order denying its motion to vacate the judgments. We affirm.
American Economy filed a notice of joinder to all pleadings filed by respondent in this action. After briefing was complete, American Economy reached a settlement with appellant and is no longer a party to this appeal.
Appellant’s notice of appeal does not specify that appellant appeals from the underlying default judgments, instead stating only an appeal from the order denying the motion to set aside the defaults. However, the notice must be liberally construed. (Cal. Rules of Court, rule 8.100(a)(2).) We therefore review both the default judgments and the order that followed.
CONTENTIONS
Appellant contends that: (1) the trial court abused its discretion in issuing terminating sanctions; (2) appellant did not receive the required notice of its attorney’s death under Code of Civil Procedure section 286, therefore the court was without power to conduct any proceedings after the date of appellant’s attorney’s death; (3) the court abused its discretion in failing to set aside the defaults due to appellant’s mistake, inadvertence, surprise or excusable neglect under section 473; and (4) the court abused its discretion in failing to use its equitable powers to vacate the defaults.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
1. The fire
Appellant owned commercial property located at 13651 Foothill Boulevard in Sylmar, California (the property). Respondent was appellant’s tenant, operating two businesses at the property.
On August 5, 2004, a fire occurred at the property. The fire rendered the premises unusable and both businesses inoperable. There was no insurance available to pay for the loss.
2. The pleadings
On May 13, 2005, respondent filed a complaint against appellant alleging that appellant failed to insure the property, failed to repair the property, and failed to secure the building and fixtures from vandalism and the elements. On August 15, 2005, appellant filed a general denial to the complaint, and on August 18, 2005, appellant filed a cross-complaint against respondent, American Contractors Indemnity Company, and Twins Roofing, Inc.
Appellant entered into a stipulated judgment with American Contractors Indemnity Company and Twins Roofing, Inc., pursuant to which those two parties were dismissed from the action.
On September 7, 2005, respondent filed a motion for leave to file a first amended complaint, containing the same causes of action set forth in the original complaint. On March 22, 2006, respondent filed a motion for leave to file a second amended complaint, adding causes of action for specific performance and wrongful eviction. The second amended complaint was ordered filed as of April 24, 2006, and on June 19, 2006, appellant filed a general denial to the second amended complaint.
On November 8, 2006, respondent filed a motion for leave to file a third amended complaint, which contained the same causes of action as the second amended complaint. The motion was granted and the third amended complaint was ordered filed as of December 6, 2006.
3. Death of appellant’s attorney
Attorney Richard Keller was appellant’s attorney of record when respondent was granted leave to file the third amended complaint, which was served on Keller on December 8, 2006.
On December 26, 2006, respondent, through its counsel, wrote to Keller informing him that respondent was preparing a joint witness list, exhibit list, jury instructions and statement of the case. Respondent invited Keller to provide any documents he wished to include in those items, but Keller never responded. On December 29, 2006, respondent again wrote to Keller enclosing drafts of the pretrial documents, but received no response.
On January 2, 2007, respondent wrote to Keller and reminded him that appellant’s answer to the third amended complaint was late, and demanded that he file and serve an answer immediately. On January 4, 2007, respondent sent Keller an e-mail attaching respondent’s pretrial documents and reminding him that he had passed his deadline to file an answer.
On January 12, 2007, a final status conference was held. Respondent raised the issue of appellant’s failure to file a responsive pleading to the third amended complaint. The court offered to allow appellant to deem its answer to the second amended complaint an answer to the third amended complaint, but Keller stated that appellant would file a pleading. The court continued the status conference to January 16, 2007, and ordered Keller to bring an answer to that appearance, along with his trial documents.
Keller appeared at the status conference on January 16, 2007, but did not bring the requested documents. The court ordered that defendant’s answer be filed by January 23, 2007. At the conference, Keller requested a two-month trial continuance due to his ill health. Respondent did not oppose this request, and the court granted a seven-month continuance, to August 7, 2007. The court also set a final status conference for July 27, 2007.
On January 19, 2007, Keller died.
On January 26, 2007, unaware of Keller’s death, respondent’s counsel sent Keller one final reminder about appellant’s failure to file an answer.
On February 26, 2007, American Economy filed a complaint-in-intervention against appellant.
4. Respondent’s efforts to contact appellant after the death of appellant’s attorney
On March 1, 2007, respondent’s counsel was contacted by David Holmes, who stated that he had worked with Keller. Holmes informed respondent’s counsel that Keller had passed away on January 19, 2007. According to a message left with respondent’s counsel’s secretary, Holmes indicated that he was attempting to determine whether appellant was going to obtain new counsel to proceed with the case.
On March 7, 2007, respondent’s counsel was in touch with Bill Woo, Keller’s paralegal, with whom respondent’s counsel had previous contact on this matter. Woo indicated that he was in contact with appellant. Respondent’s counsel, through its secretary, asked Woo to advise appellant of Keller’s death and find out whether appellant intended to hire new counsel.
On March 21, 2007, respondent’s counsel’s office again contacted Woo, who said that he had referred appellant to a few attorneys in Orange County. Woo was informed that respondent’s insurer had filed a complaint-in-intervention, and that an answer was coming due. At his request, respondent’s counsel faxed the complaint-in-intervention to Woo, who indicated that he would forward it to appellant.
On March 28, 2007, respondent’s counsel sent appellant notice pursuant to section 286. The letter read:
“As you know, this office represents B Five Corp, Plaintiff in the referenced action. We are advised that Richard Keller, your attorney, has died.
“This letter is being sent to you pursuant to California Code of Civil Procedure § 286, as notice that you must appoint another attorney to represent you in the referenced matters. I understand that you have been in contact with Mr. Keller’s former paralegal, Bill Woo, regarding obtaining new counsel.”
The letter was addressed to Ha-Chun Ying, the owner of appellant. The letter was sent to the most recent address respondent’s counsel had on file, which was 13691 Gavina Ave., #400, Sylmar, CA 91342. The letter was also faxed to Woo, with transmission confirmed successful.
Ha-Chun Ying is also identified as Ha-Chun Ying Cheung.
The letter to Ha-Chun Ying was returned by the post office with a notation that the forwarding order had expired, and the new address was 17323 ½ San Jose Street, Granada Hills, CA 91344-6132. The letter was copied and immediately re-sent to the San Jose Street address by regular mail.
On March 28, 2007, respondent’s counsel also requested from the Secretary of State the last complete statement of information filed by appellant. In response, the Secretary of State sent a statement that was filed by appellant on March 6, 2006, showing Ha-Chun Ying as the sole director and officer of appellant; Jerome Perry (Perry) as agent for service of process; and the only address in all categories as 17323 ½ San Jose Street, Granada Hills, CA 91344. This was the same address supplied by the post office. Respondent’s counsel also obtained from the Secretary of State appellant’s last filed statement of information, which was a “no change” statement filed on August 23, 2006, and signed by Ha-Chun Ying.
On April 11, 2007, respondent’s counsel wrote to the State Bar for assistance. Thereafter, respondent’s counsel spoke with a State Bar representative and provided all contact information for appellant, Holmes, and Woo. The State Bar indicated that its role was limited.
On April 27, 2007, respondent’s counsel sent another letter to appellant, addressed to Ha-Chun Ying at the San Jose Street address. The letter enclosed the March 28, 2007 notice pursuant to section 286, as well as the April 11, 2007 letter which respondent’s counsel had written to the State Bar requesting assistance. The letter also advised appellant of the upcoming final status conference and trial dates.
The certified mail package was returned undelivered, but the letter sent by regular mail was not returned. A copy of the letter was also sent to Keller’s office. While the certified copy was returned, the one sent by regular mail was not.
5. Subsequent court proceedings
On May 22, 2007, respondent filed a motion for leave to amend expert witness designation. In the motion, respondent’s counsel advised the trial court that Keller had died, that respondent had served notice pursuant to section 286, that respondent had contacted the State Bar, and that respondent had again attempted to contact appellant on April 27, 2007. The motion was served on appellant by regular and certified mail at 17323 ½ San Jose Street, Granada Hills, CA 91344, which was appellant’s last known address provided by appellant to the Secretary of State. The motion was served in the same manner on Keller’s office. All four mailings were returned by the post office. The motion was also served by fax on Keller’s office and Woo, with both transmissions confirmed successful.
The motion was granted on June 28, 2007. A notice of ruling was served on June 29, 2007, which included service of process at the addresses listed with the Secretary of State. Again, all mailings to appellant and Keller were returned, but the fax transmissions to Keller’s office and to Woo were confirmed successful.
The notice of ruling advised the parties that the court had set a status conference for July 11, 2007. The court ordered appellant to appear at the status conference and have an attorney ready to appear for trial as scheduled for August 7, 2007.
Appellant failed to appear at the July 11, 2007 status conference. This was its second failure to appear, and the court ruled that if appellant did not appear at the final status conference on July 27, 2007, it would be defaulted and its cross-complaint would be stricken. The court ordered respondent’s counsel to research public records for any address for appellant that could be found; to serve the notice of ruling by regular and certified mail to every address found; and to address the mailings to Jerome Perry, the agent for service of process, and Ha-Chun Ying, the principal, at each address found.
Respondent’s counsel checked Yellow Page listings, Secretary of State records, property tax rolls and real estate records to locate all known addresses for appellant. Respondent’s counsel located three different addresses: (1) 13691 Gavina Ave., #400, Sylmar, CA 91342, which was the original address known to respondent; (2) the San Jose Street address, which was the current address listed with the Secretary of State; and (3) the address of the property where respondent had been a tenant. Respondent prepared and served the July 11, 2007 notice of ruling by regular and certified mail, return receipt requested, to each of those addresses, addressed separately to Perry and Ha-Chun Ying, for a total of 12 mailings to appellant. Each one of them was returned undelivered.
The July 11, 2007 notice of ruling was also served on Keller’s office by fax, regular and certified mail. Although the certified mailing was returned, the regular mail copy was not. Fax transmissions of the notice of ruling to Keller’s office and Woo were confirmed successful. In addition, respondent’s counsel sent the notice of ruling by e mail to Woo, which went through successfully.
6. The defaults
The final status conference was held on July 27, 2007. This was the third appearance appellant failed to attend. Because appellant made no appearance, its answer as to the complaint-in-intervention and its cross-complaint were stricken. Default was entered on respondent’s third amended complaint, to which no answer had ever been filed. The court vacated the August 7, 2007 trial date and set an order to show cause re entry of default for September 27, 2007.
Respondent’s counsel prepared a notice of ruling following the final status conference, and served it in the same manner as the prior notice of ruling. The notices to Perry and Ha-Chun Ying were returned undelivered. The certified copy sent to Keller’s office was returned undelivered, but the regular mailing was not. The notice of ruling was also served by fax on Keller’s office and Bill Woo. Both transmissions were confirmed successful. In addition, an e-mail service to Bill Woo was confirmed successful.
On August 7, 2007, appellant filed a substitution of attorney substituting out Keller and naming in his place Homan Hosseinioun, with an address in Orange County. The substitution does not include a proof of service.
On August 13, 2007, at the court’s request, respondent’s counsel filed a declaration outlining in detail the proceedings which had occurred and respondent’s efforts to contact appellant. This declaration was served in precisely the same manner as the prior two notices of ruling, with the same results.
The court requested briefing as well as testimony of fact and expert witnesses, which were submitted on September 6, 2007. Supplemental papers were filed at the court’s request on November 20, 2007. The court heard live testimony on November 26, 2007. On December 14, 2007, after the default prove-up proceedings, the trial court entered judgments against appellant and in favor of respondent for $2,376,052.40 and in favor of American Economy for $68,055.75.
7. Appellant’s motion to vacate and set aside defaults
On January 15, 2008, appellant filed a motion to vacate and set aside the defaults and default judgments (motion to vacate). In her declaration filed in support of the motion, Ha-Chun Ying provided conflicting information as to when she first learned of Keller’s death. However, she admitted that she knew of his death as early as April or May of 2007. Ha-Chun Ying declared that she did not know what to do and assumed that she would “receive some direction from the Court or the State Bar.” While she stated that she received no written notice from anyone that she should obtain an attorney, she did not deny receiving the alleged verbal advice from Woo. Ha-Chun Ying further declared that after learning of Keller’s death, she did nothing until October 2007 when she contacted attorney James Morris through a friend, later identified as Perry, her agent for service of process. Ha-Chun Ying made no mention of the substitution of attorney filed on August 7, 2007.
Respondent filed its opposition to appellant’s motion to vacate on February 7, 2008. Respondent also filed a request for judicial notice. On the same date, American Economy filed its opposition papers.
On February 14, 2008, appellant filed its reply to the oppositions filed by respondent and American Economy. Appellant also filed hearsay objections to statements within respondent’s opposition.
8. The trial court’s ruling
Appellant’s motion to vacate was heard on February 22, 2008. The court noted that Ha-Chun Ying, the sole representative of appellant, had notice of Keller’s death in April 2007. The court stated that it did not believe “that she was sitting there expecting the court to tell her what to do.” In addition, the court found that “the notion that she did not know she needed a new attorney is not credible.” The court noted that there were numerous attempts by respondent to send notice to appellant pursuant to section 286. The court found that every resource available was used to try to notify appellant, however Ha-Chun Ying “just disappeared and moved and changed her address without telling anybody.” In light of the duties she undertook as president or CEO of appellant, the court had little sympathy for appellant’s claims that it did not receive the notice. The court noted that the requirements of section 286 are not jurisdictional and can be waived if a party knows of the pendency of the proceedings and knows of the attorney’s death. The court concluded that appellant had provided “no satisfactory explanation for the inactivity in the face of actual knowledge of the death of her attorney and actual knowledge of the pendency of this suit.”
The court also noted that appellant had “repeatedly substituted attorneys” in this matter. The record shows that appellant filed a substitution of attorney on April 17, 2006, and another on June 27, 2006. The June 27, 2006 substitution named Keller as appellant’s attorney. In addition, as discussed above, on August 7, 2007, appellant filed a substitution of attorney substituting out Keller and naming in his place Homan Hosseinioun. The court cited these repeated substitutions of attorney as evidence that appellant “had actual notice the case was pending,” and suggested that they undermined Ha-Chun Ying’s position that she did not know what to do when her attorney died.
The court found appellant’s failure to appear to be “inexcusable neglect.” The court further found that section 286 was “either complied with or waived or both.” The court emphasized that the defaults were not entered without due consideration, stating “We really tried on this one.... [I]t was only done after it was clear that [appellant] had apparently abandoned the case.”
On April 7, 2008, appellant filed its notice of appeal. On June 5, 2008, the court signed the order denying appellant’s motion to vacate and set aside defaults and default judgments.
DISCUSSION
I. Standard of review
The applicable standard of review for all of appellant’s claims is abuse of discretion. (Robbins v. Los Angeles Unified School Dist. (1992) 3 Cal.App.4th 313, 319 [motion seeking relief from judgment under section 473 is reviewed for abuse of discretion]; Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981 [challenge to trial court’s denial of motion to vacate a default on equitable grounds reviewed for abuse of discretion]; McMunn v. Lehrke (1915) 29 Cal.App. 298, 308 [dismissal of matter where section 286 notice required is reviewed for abuse of discretion]; Link v. Cater (1998) 60 Cal.App.4th 1315, 1325 (Link) [appeal from dismissal for failure to appear reviewed for abuse of discretion].)
Under this standard, we give substantial deference to the trial court’s decision. We will affirm the trial court’s 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.)
II. The trial court did not abuse its discretion in entering the default judgments.
We decline to find waiver of this issue on the ground that appellant did not challenge the validity of the default judgments below. The significant facts are not disputed, and respondent has had ample opportunity to respond to this legal challenge. (Ward v. Taggart (1959) 51 Cal.2d 736, 742.)
In support of its argument that the default judgments should not have been entered against it, appellant cites the general policy in favor of disposing of litigation on the merits. Citing Daley v. County of Butte (1964) 227 Cal.App.2d 380, 390, appellant argues that this policy is more powerful than the policy against unreasonable delays in litigation. Appellant cites Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795 (Wantuch), and Link, supra, 60 Cal.App.4th at page 1325, for the proposition that it is improper for a court to strike a party’s pleadings simply because of a non-willful failure to appear.
The cases cited by appellant on this point do not convince us that the trial court abused its discretion when it struck appellant’s pleadings and entered defaults. Wantuch involved an indigent prisoner’s failure to appear at a status conference due to his incarceration. The court noted that the prisoner had diligently prosecuted the matter up to the time of the conference, and had made a request that the court appoint counsel to appear on his behalf at the conference. The trial court was aware of the prisoner’s imprisonment and could have come up with alternative means to conduct the conference. Under those circumstances, the Court of Appeal concluded that the trial court abused its discretion by ordering terminating sanctions. (Wantuch, supra, 32 Cal.App.4th at p. 795.) Link involved terminating sanctions imposed pursuant to section 581, subdivision (l), after a party failed to appear at trial. The party’s counsel had appeared telephonically and asked for a continuance. The Court of Appeal noted that the party who failed to appear had been diligently prosecuting his case for four years, and that the trial court was operating under some misapprehensions regarding the procedural history of the case. (Link, supra, 60 Cal.App.4th at p. 1324.) Under those circumstances, the trial court abused its discretion in inviting dismissal of the case and refusing to grant a continuance when the imposition of a lesser sanction would have sufficed. (Id. at p. 1325.)
The circumstances of this case are completely different. The record shows that it was not until respondent had undergone exhaustive efforts to contact appellant for at least six months that the trial court imposed the defaults. Unlike the sanctioned parties in Wantuch and Link, appellant failed to contact the court, failed to provide any explanation for its failures to appear, and failed to seek any continuance of the proceedings.
Evarone v. Twentieth Century Hosts, Inc. (1979) 98 Cal.App.3d 90 (Evarone), is equally distinguishable. After failing to appear at a settlement conference, a corporate defendant, through its president, appeared in court on July 6, 1978, and requested that the trial be continued due to the difficulty she was having in obtaining counsel. The request was granted, and the court continued the trial to February 6, 1979. However, when defendant failed to appear for a settlement conference on July 10, 1978, a motion to strike defendant’s answer and enter defendant’s default was granted. In the company’s motion to set aside the default and reinstate defendant’s answer, the president of the company declared that, having appeared on July 6, 1978, and obtained a continuance of trial to February of 1979, she believed that the July 10, 1978 court date had been cancelled. The Court of Appeal held that, under those circumstances, the defendant’s actions “fall short of the type of flagrancy justifying deprivation of a litigant’s day in court.” (Id. at p. 96.)
Appellant here missed three court dates: the hearing on respondent’s motion to amend its expert witness designation, which took place in June 2007; the status conference on July 11, 2007; and the final status conference on July 27, 2007. Appellant also failed to appear for any of the order to show cause proceedings between August 2007 and the date the final judgments were entered--December 14, 2007. Defendant made no effort to contact the court or request continuances. This conduct is significantly different from the corporate conduct in Evarone, which amounted to a misunderstanding about a single court date. Appellant’s attempts to excuse its behavior by stating that Ha Chun Ying “never knew about any scheduled court appearances” is not acceptable in light of her admitted knowledge of her attorney’s death and of the proceedings against appellant. We cannot conclude that, under the circumstances of this case, the court abused its discretion in concluding that “flagrant, inexcusable disregard of the judicial process” warranting dismissal occurred. (Evarone, supra, 98 Cal.App.3d at p. 95.)
In addition, respondent was entitled to rely on the information that appellant provided to the Secretary of State. (Pasadena Medi-Center Associates v. Superior Court of Los Angeles County (1973) 9 Cal.3d 773, 780.) Thus, knowing of the litigation against it, appellant had an obligation to keep the Secretary of State’s records updated so that the company could be contacted.
III. The trial court’s finding that section 286 was complied with and/or waived is supported by the record
When an attorney dies, section 286 protects the client from further proceedings against it until the adverse party gives written notice that the deceased attorney’s client must appoint another attorney or appear in person. (§ 286; Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 742.) The statute reads:
“When an attorney dies... a party to an action, for whom he was acting as an attorney, must, before any further proceedings are had against him, be required by the adverse party, by written notice, to appoint another attorney, or to appear in person.” (§ 286.)
Appellant argues that, while respondent’s section 286 notice advised appellant to appoint new counsel, it did not advise that, in the alternative, appellant must appear in person. Thus, even if appellant received this letter -- which it denies -- appellant was never put on notice that it had to retain new counsel or appear in person. Because appellant never received the required notice, appellant argues, all rulings after January 19, 2007, the date of Keller’s death, should be set aside and vacated.
Appellant cites no specific authority for its position that respondent’s section 286 notice was insufficient. Nor does appellant suggest that, had the section 286 notice included the alternative instruction that appellant must appear in person, appellant would have done so. We reject appellant’s arguments and find that the trial court’s decision that the section 286 notice was “either complied with or waived or both” is fully supported by the law and the record.
The provisions of section 286 may be waived where the affected party knows of the death of its attorney and is aware of the pending litigation. (California Water Service Co v. Edward Sidebotham & Son, Inc. (1964) 224 Cal.App.2d 715, 736.) In her declaration, Ha-Chun Ying admits knowledge of her attorney’s death as of April or May 2007. She does not challenge the fact that she knew of the litigation, which had been pending against appellant since May 2005. Thus, the trial court’s finding of waiver is appropriate. Further, as set forth above, respondent made every effort to provide appellant with the section 286 notice. Respondent properly relied on the address appellant filed with the Secretary of State, and served the notice numerous times. The fact that the section 286 notice did not direct appellant to appear personally in court is irrelevant, as there is no indication that Ha-Chun Ying would have done so.
IV. The trial court did not abuse its discretion in denying relief from the default judgment
Appellant argues that the trial court abused its discretion in denying relief from the default judgments. Appellant’s argument is based on both section 473, which allows relief from judgment when a default is entered because of mistake, inadvertence, surprise or excusable neglect; and the trial court’s inherent powers of equity. We find that the trial court did not abuse its discretion by declining to set aside the default judgments on these grounds.
The trial court specifically found that the defaults were a result of “inexcusable neglect.” As discussed above, the court found that appellant offered “no satisfactory explanation for the inactivity in the face of actual knowledge of the death of her attorney and actual knowledge of the pendency of this suit.” In addition, the court did not believe Ha-Chun Ying’s statements that she did not know what to do and was awaiting instruction from the court or the State Bar. We do not re-evaluate the trial court’s credibility determination. The trial court did not exceed the bounds of reason in denying relief from the default judgments under section 473.
The cases cited by appellant on this point do not dictate otherwise. All are distinguishable on the ground that they show excusable neglect or ignorance, in contrast to the inexcusable neglect exhibited by appellant. (See Reed v. Williamson (1960) 185 Cal.App.2d 244 [relief from judgment entered where attorney’s motion to withdraw was not served on his client, who had single address throughout the proceedings]; Watson v. Watson (1958) 161 Cal.App.2d 35 [defendant, who was a “war bride” brought to the United States from Japan by plaintiff husband, relieved from judgment on the grounds of ignorance, mistake or inadvertence because she did not understand or speak English; had no knowledge of her rights; and had no advice of counsel]; Shamblin v. Brattain (1988) 44 Cal.3d 474 [defendant received no notice of pleading deadlines on appeal and subsequent retrial of matter due to inadvertent deletion of defendant from court clerk’s mailing list and subsequent failure of parties to use proper zip code].)
For the same reasons, the trial court did not abuse its discretion in failing to grant relief from the defaults on the basis of its inherent equitable powers. Appellant cites Rappleyea v. Campbell, supra, 8 Cal.4th at page 981 as authority that the court has the equitable power to set aside a default judgment on the basis of extrinsic mistake. For the court to exercise this power the moving party must show that (1) it has a meritorious defense; (2) it has a satisfactory excuse for not presenting a defense to the original action; and (3) it was diligent in seeking to set aside the default. (Ibid.) As explained above, the trial court did not err in determining that appellant could not meet the second element of this formula. Thus the trial court did not abuse its discretion in failing to apply it.
DISPOSITION
The order and judgments are affirmed.
We concur: BOREN, P. J., DOI TODD, J.