Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. Peter J. Meeka, Judge. No. KC054518
Stefan Robert Pancer for Defendant and Appellant.
Lax & Stevens, Paul A. Lax, Donna E. Kirkner and Jason W. Suh for Plaintiff and Respondent.
WOODS, Acting P. J.
INTRODUCTION
This is an appeal from an order granting relief from default judgment for lack of actual notice. (Code Civ. Proc., § 473.5.) We affirm.
FACTUAL AND PROCEDURAL SUMMARY
In July 2007, Lance Burgey (through his attorney Dean Prober of Polk, Prober and Raphael) filed a complaint (and notice of lien) against Zhengua Shen (and others not parties to this appeal), alleging causes of action for breach of contract, foreclosure of mechanics’ lien and account stated, services rendered and unjust enrichment. According to Burgey’s “limited civil case” complaint, Shen entered into a written agreement for Burgey to complete certain improvements to Shen’s property in Rowland Heights in exchange for Shen’s payment of $71,715.80, but Shen had paid only $56,000, leaving a balancing owing of approximately $15,715, plus interest.
Defendants Shan Zeng and Shen Hongxiao (not parties to this appeal) answered. In April 2008, Zhengua Shen filed a motion to set aside entry of default against her pursuant to Code of Civil Procedure section 473.5. Shen said she had not received actual notice of Burgey’s complaint because she had been improperly served by substitute service at her daughter’s address at a time when Shen was living in Las Vegas, Nevada. Shen’s motion was granted, and her accompanying answer and cross-complaint were deemed filed in May.
All further statutory references are to the Code of Civil Procedure.
In her declaration in support of her motion to set aside default, Shen states she was purportedly served by substitute service at 205 S. Halstead in Pasadena, but “I have never resided at that address.” Correspondence in the record from Shen to Burgey (dated December 26, 2006) identifies the Halstead address as Shen’s return address.
On September 11, 2008, Burgey’s attorney (Prober) filed an answer to Shen’s cross-complaint on Burgey’s behalf. In December 2008, the matter was reclassified as an unlimited civil case and ordered transferred and reassigned. (Shen’s cross-complaint for breach of contract and negligent and intentional misrepresentation sought damages of $150,000, plus punitive and other damages.)
On December 26, 2008, Shen filed a motion for an order deeming matters in request for admissions be deemed admitted and for sanctions along with a motion to compel responses to form interrogatories and for sanctions. According to supporting declarations filed by Shen’s counsel, he had granted Burgey’s counsel (Dean Prober) a two-week extension to respond by November 3, and had attempted to communicate with counsel to avoid the need for motions as evidenced by his attached correspondence, but he had received no response to his correspondence.
On January 21, 2009, Shen’s discovery motions were granted, and Burgey was ordered to serve verified responses and pay sanctions within 15 days. According to the court’s minute order of that date, Burgey’s counsel (Prober) appeared “via court call.”
On February 11, Shen filed a motion for terminating sanctions for Burgey’s failure to comply with the court’s discovery orders, requesting dismissal of Burgey’s complaint and the striking of his answer. According to Shen’s counsel’s supporting declaration, “Since the date defendants filed answers to Mr. Burgey’s complaint, opposing counsel has failed to respond to my letters and telephone calls. Mr. Burgey has not responded to the court ordered discovery or paid my client the court ordered monetary sanctions. At the last status conference, opposing counsel stated that he had not spoken with his client in several months.”
On March 12, the trial court granted Shen’s unopposed motion for terminating sanctions, ordered Burgey’s complaint dismissed with prejudice and ordered stricken Burgey’s answer to Shen’s cross-complaint. According to the minute order of the March 12 hearing date, Homan Mobasser appeared via Court Call on behalf of Burgey.
On March 24, Burgey’s default was entered (with service by mail on Burgey’s counsel Dean Prober), and on April 13, default judgment was entered against Burgey in the amount of $155,996.
On January 21, 2010, Burgey (now represented by Donna Kirkner of Lax & Stevens pursuant to a substitution of attorneys signed by Prober on January 6 and served on January 19) filed a motion to vacate dismissal, default and default judgment pursuant to section 473.5. According to Burgey’s supporting declaration, in late November 2009, he received notice from his contractor’s license bond company that Shen had obtained a default judgment against him in the approximate amount of $155,000. “That notice was the first notice I had that Ms. Shen filed a cross-complaint against me. No one from Mr. Prober’s officer ever advised me that Ms. Shen was seeking damages from me.” In mid-December 2009, he said, he received notice from the Contractors State License Board that his license had been suspended due to the default judgment entered against him and, on December 31, 2009, retained Lax and Stevens to represent him.
According to Burgey’s declaration, his attorneys then advised him his complaint and answer to cross-complaint had been stricken as terminating sanctions because he had not responded to discovery as ordered. Burgey said (1) he never received a copy of the form interrogatories or requests for admission from Prober or his firm; (2) he never received notice from Prober or his firm that Shen was seeking an order compelling him to respond; and (3) he never received notice from Prober or his firm that Shen had obtained an order compelling him to answer interrogatories, deeming requests for admission admitted and ordering him to pay sanctions although Prober and his firm “had my cell phone number, my e-mail address, and my mailing address, all of which remained the same during the time he represented me” and Burgey received and paid monthly fee statements from Prober.
In his declaration, Burgey requested the opportunity to defend Shen’s cross-complaint on the merits, stating Shen had breached the contract by refusing to pay him for his work and advising him in writing not to return to the project. He was aware of no work performed improperly, he said, and furthermore all amounts claimed by Shen should have been paid by Farmer’s Insurance, but additional work had been performed at Shen’s direction outside the original contract, and he expected discovery would reveal additional damages claimed by Shen were for work not included in her contract with Burgey and paid for by Farmers Insurance.
Burgey’s new counsel (Donna Kirkner) also filed a declaration stating she had obtained Prober’s file and reviewed the court file and case summary on the court website which she attached as an exhibit. Prober’s file contained a copy of Shen’s cross-complaint served on Prober’s office along with a copy of an answer which, according to the court website, had been filed. The file also contained a copy of the motion for terminating sanctions (but not the motions to compel responses to interrogatories or to deem admissions and no oppositions) along with Shen’s declaration in support of default judgment.
Michael Goudie, identifying himself as “Assignee of Record [I]n Pro Per, ” filed an opposition to Burgey’s motion, asserting Burgey was not entitled to relief as Burgey had not replaced Prober as counsel until January 6, 2010; therefore, service on Prober as Burgey’s counsel constituted actual notice to Burgey, and Burgey had failed to attach his discovery responses to show he had a meritorious defense. According to Goudie’s declaration, Shen’s judgment against Burgey was assigned to him for collection on September 9, 2009, and after he contacted the HCC Surety Group to demand payment of the judgment with Burgey’s contractor’s license bond, HCC informed him in mid-November 2009 that Burgey disputed the judgment and had not paid the judgment. Goudie also attached a declaration from Shen, referencing and attaching as exhibits correspondence between Burgey and her (between late December 2006 and April 2007), in which she said Burgey had failed to complete the project on time, demanded receipts and documentation and told him to stop work on the house.
In his reply, Burgey noted Shen (through Goudie) waited six months to attempt to collect on the judgment entered against him on April 13, 2009. Correspondence in the record from HCC Surety Group to Goudie acknowledges Goudie’s communication of October 14, 2009, asserting a potential claim for breach of contract against Burgey’s contractor’s license bond.
On February 19, 2010, after hearing argument, the trial court determined Burgey did not have actual notice of Shen’s cross-complaint, Burgey’s failure to receive actual notice was not caused by his avoidance of service or inexcusable neglect; and his motion was brought within two years of the dismissal of his complaint, entry of default and default judgment. As a result, the court ordered vacated the March 12, 2009, order striking Burgey’s complaint and answer to cross-complaint; vacated the March 24, 2009, entry of default against Burgey; and vacated the default judgment entered against Burgey on Shen’s cross-complaint on condition that Burgey provide his outstanding discovery responses within 30 days.
According to the court’s March 5, 2010, order, Shen was represented at the hearing by new counsel (Steven Pancer) who filed appellants’ opening and reply briefs on behalf of Goudie and Shen; there is no mention of Goudie although only Goudie filed opposition to Burgey’s motion (in pro per, supported by Shen’s declaration).
Shen and Goudie appeal.
DISCUSSION
According to Shen (and Goudie), the trial court erred in granting Burgey’s motion pursuant to section 473.5 based on abandonment because Burgey had actually “avoided contact with his counsel, ” and service on Burgey’s counsel amounted to actual notice to Burgey. We disagree.
Section 473.5 provides as follows: “(a) When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.
As we stated in Rosenthal v. Garner (1983) 142 Cal.App.3d 891, 895, section 473.5 “mean[s] what is says when it refers to actual notice.” Section 473.5’s reference to “‘actual notice’ means genuine knowledge of the party litigant and does not contemplate notice imputed to a principal from an attorney’s actual notice.” (Ibid.; see also Tunis v. Barrow (1986) 184 Cal.App.3d 1069, 1077 .)
Burgey presented evidence he lacked such notice of Shen’s cross-complaint against him. To the extent Shen relies for the first time on a status conference worksheet dated February 20, 2009, bearing a notation “lost contact with client” (with no indication who prepared the notation) in support of her claim on appeal Burgey affirmatively “avoided” his counsel, Shen has still failed to demonstrate an abuse of discretion on the record summarized above. Burgey stated that he received no notice from Prober regarding the cross-complaint, any of the outstanding discovery or discovery motions, the motion for terminating sanctions, the default or default judgment despite the fact Prober had all of Burgey’s contact information and Burgey had paid his bills. “‘Unless inexcusable neglect is clear, the policy favoring trial on the merits prevails. [Citation.] Doubts are resolved in favor of the application for relief from default [citation], and reversal of an order denying relief results [citation].’” (Tunis v. Barrow, supra, 184 Cal.App.3d 1069, 1079, citing Elston v. City of Turlock (1985) 38 Cal.3d 227, 235.) Shen has failed to demonstrate an abuse of discretion.
In any event, as Burgey noted, Shen (Goudie) waited precisely six months and one day to enforce the judgment against Burgey, and Shen made no attempt to identify any prejudice resulting from the trial court’s order. Shen has failed to demonstrate prejudicial error in the trial court’s exercise of its discretion in this case. (See Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 740.)
Shen’s brief includes a heading (followed by no discussion, argument or legal authority) which states “section 473.5 only applies to service of a summons and complaint.” Because Shen has failed to provide any discussion, argument or citation to legal authority whatsoever, we deem the point waived. Similarly, she says Burgey failed to attach a copy of his “answer, motion, or other proposed pleading” as required. However, the trial court vacated the orders striking Burgey’s answer to cross-complaint and dismissing his complaint, effectively reinstating them, and relief was granted on condition that Burgey answer discovery within 30 days. Again, Shen has failed to demonstrate prejudicial error in either respect.
DISPOSITION
The order is affirmed. Burgey is entitled to his costs of appeal.
We concur: ZELON, J., JACKSON, J.
“(b) A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.
“(c) Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.”