Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from an order of the Superior Court of Orange County, Janet M. Christofferson, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.), Super. Ct. No. 06CC03098
Law Office of Nicholas J. Mosich, Nicholas J. Mosich and Justin A. Bubion for Defendant and Appellant.
Dwight Law Group, Amanda V. Dwight; Newell, Campbell & Roche and Meredith G. Karasch for Plaintiff and Respondent.
OPINION
O’LEARY, J.
Nga Phan appeals from an order denying her Code of Civil Procedure section 473, subdivision (b), motion to set aside a default judgment against her contending the trial court abused its discretion by denying her relief. We find no error and affirm the order.
All further statutory references are to the Code of Civil Procedure.
FACTS
Calico Building Services, Inc., (Calico) filed a complaint against Son Duc Dao and Phan “DBA Sony WebGroup,” for breach of contract. The complaint was served on both defendants at their shared residence, and neither filed a response.
On May 8, 2006, Phan’s and Dao’s defaults were entered. At the default prove-up hearing, Calico’s president submitted his declaration explaining that in December 2004, Calico had retained Dao and Phan, who did business as Sony WebGroup to create an online business system for Calico. Calico paid Sony WebGroup the full fee, $38,800, but the system was never designed or delivered. Attached to the declaration was the invoice submitted to Calico by Sony WebGroup listing Phan as Sony WebGroup’s account executive for the project. On June 29, 2006, the court entered a default judgment in favor of Calico against Dao and Phan for $51,091.87.
On July 12, 2006, Dao and Phan filed a motion to set aside the default judgment under section 473. In her declaration, Phan stated she had nothing to do with the underlying contract. She had no idea what to do with the legal documents served on her, so she asked Dao “to help me out because I was not involved with Calico.” A friend of Dao’s referred him to an attorney, and Phan “agreed to go along.” Phan did not know that if she failed to respond to the complaint, a judgment could be entered against her. In his declaration, Dao stated he had no idea what to do with the legal documents that were served on him and did not know failing to respond could result in a judgment against him. A friend sent him to see an attorney.
There is no suggestion Phan or Dao sought legal advice before the default judgment was entered, i.e., this is not a case in which there is any claim of attorney mistake or neglect.
On August 28, 2006, the trial court denied the motion to set aside the default judgment. At the hearing, defense counsel offered that Phan and Dao would post a bond to secure payment of any judgment that might be entered against them. In denying the motion to set aside the default judgment, the trial court concluded there had been no showing of an excusable mistake. Phan and Dao filed a section 1008 motion to reconsider its ruling, which was denied.
On January 19, 2007, Phan filed a notice of appeal from the order denying the motion for reconsideration. Dao did not appeal. Calico filed a motion to dismiss the appeal on the grounds the order was not appealable, and if the notice of appeal was construed as being from the default judgment, entered June 29, 2006, the appeal was untimely. We denied the motion to dismiss, construing the notice of appeal as being from the August 28, 2006, order denying Phan’s motion to set aside the default judgment.
DISCUSSION
Phan sought relief from the default judgment under the discretionary relief provisions of section 473, subdivision (b). “Under the discretionary relief provision, on a showing of ‘mistake, inadvertence, surprise, or excusable neglect,’ the court has discretion to allow relief from a ‘judgment, dismissal, order, or other proceeding taken against’ a party . . . .” (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 615-616.) The party seeking relief from default has the burden of establishing a basis for relief. (Parage v. Couedel (1997) 60 Cal.App.4th 1037, 1041-1042.)
Under the mandatory relief provision of section 473, subdivision (b), if there is an attorney’s affidavit of fault, relief is required unless it is determined that the attorney was not actually the cause of default or dismissal. (Lorenz v. Commercial Acceptance Ins. Co. (1995) 40 Cal.App.4th 981, 989.)
When relief from default is sought within the six-month time frame provided in section 473, the public policy favoring disposition of cases on their merits applies and granting relief is favored. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980.) Nonetheless, the decision to grant relief rests with the trial court, and on appeal we review its ruling under the discretionary provision of section 473, subdivision (b), for an abuse of discretion. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.)
“A party seeking relief under section 473 on the grounds of excusable neglect bears the burden of demonstrating that the neglect was excusable in order to secure relief. [Citation.] 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.]” (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1128.)
Sufficient evidence supports the trial court’s conclusion Phan did not demonstrate excusable neglect. The cases she cites for the proposition the court should have found she reasonably relied on Dao to handle the matter for her are inapposite as in each the defendant either tendered defense to its insurer (see Weitz v. Yankosky (1966) 63 Cal.2d 849; Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816), or relied on specific representations by another to provide a defense (see Bailey v. Roberts (1969) 271 Cal.App.2d 282, 286 [defendant’s uncle promised to provide defense and in defendant’s presence paid a retainer fee to attorney who said the matter would be taken care of]; Roussey v. Ernest W. Hahn, Inc. (1967) 251 Cal.App.2d 251, 257 [defendant turned matter over to codefendant who represented insurance carrier would respond on defendant’s behalf and defendant relied on those representations]).
In her declaration, Phan essentially conceded she had received the complaint and summons, but said because she did not know what to do with them, she gave the documents to Dao asking him to handle it. There is no evidence Phan lacked the capacity to understand the legal documents or that Dao was better equipped than Phan to handle the matter. There is no evidence Dao represented to Phan he would take care of the matter for her or that he gave Phan any reason to believe he was filing a response on her behalf. Phan states a friend of Dao’s referred them to an attorney, but there is no indication as to when that occurred. In short, the sum of the evidence is Phan believed her obligation to respond to the complaint ended when she told Dao to take care of it. But there is no evidence she believed he was in fact doing so, or that such a belief was reasonable. Accordingly, we cannot say the trial court abused its discretion in finding Phan failed to demonstrate excusable neglect.
In view of this conclusion, we need not address Phan’s contentions she had a meritorious defense, timely sought relief, and Calico would not suffer prejudice. Nor need we consider whether the motion to strike the punitive damages allegation in the complaint filed by Phan satisfied section 473, subdivision (b)’s requirement that a proposed answer or other responsive pleading be filed with the motion to set aside the default judgment.
DISPOSITION
The order is affirmed. Respondent is awarded its costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J., MOORE, J.