Opinion
H029839
4-27-2007
ALFRED AFICIAL DAVID, Plaintiff and Appellant, v. D & D APPAREL, INC., et al., Defendants and Respondents.
NOT TO BE PUBLISHED
Plaintiff and appellant, Alfred Aficial David (David) appeals the trial courts order setting aside a default and default judgment against defendants and respondents D & D Apparel, Inc., et al. (D & D).
The default was entered in this case as a result of D & Ds counsels failure to file an answer to the complaint. Unbeknownst to D & D and the trial court, D & Ds counsel was suffering from the latter stages of AIDS, and died during the pendency of the case. David subsequently sought and received a default judgment in the case. After securing new counsel, D & D filed a motion to set aside the default judgment due to their attorneys mistake and inadvertence (Code of Civil Proc., § 473, subd. (b)), and the trial court granted the motion. David now seeks a reversal of that order setting aside the default judgment.
STATEMENT OF THE FACTS AND CASE
In December 2002, David filed a complaint against D & D related to a business venture entered into among the parties, and D& D were served with the complaint. D & D retained Attorney Andrew Gonzales to represent them who, unbeknownst to D & D was suffering from AIDS at the time.
Gonzales never filed an answer to the complaint filed by David, but instead obtained several extensions of time for filing in order to investigate the possibility of settlement. In October 2003, Davids counsel informed Gonzales that he would request entry of default unless an answer was filed within 10 days.
Gonzales failed to appear at a subsequent case management conference and failed to communicate with opposing counsel. David requested that default be entered against D & D and in December 2003, the trial court entered default in favor of David.
After the default was entered, Gonzales attempted to have it set aside: in March 2004, he filed a motion to set aside default, but failed to appear at the hearing and the motion was taken off calendar; in May 2004, Gonzales again filed a motion to set aside the default, and the court denied the request; in July 2004, Gonzales filed a motion for reconsideration pursuant to section 1008 that was also denied; finally, in September 2004, Gonzales filed a motion to set aside entry of default that was denied.
During the time period that Gonzales was attempting to have the default set aside, D & D were maintaining regular contact with him; however, Gonzales never told them a default was entered in their case. D & D did not learn of the default until five months after it was entered. D & D maintains that representatives from Gonzaless office told them that the complaint had been answered when in fact, it had not.
Late in 2004, Donald David called Gonzales on his cell phone, and Gonzales informed him he was in the hospital and had AIDS. Gonzales also said that in January and June 2004 he had traveled to Europe seeking treatment for his illness. Two days after the phone call, Gonzales went into a coma and never woke up.
In August 2005, David sought and obtained a default judgment in the amount of $360,000 plus costs against D & D. D & D retained new counsel and filed a motion to set aside and vacate the default judgment in November 2005 on the basis of mistake, inadvertence and neglect of their former attorney due to his terminal illness. Prior to the filing of this motion, the court was never aware that Gonzales was suffering from AIDS. In December 2005, the court granted the motion and set aside the default and default judgment. David now appeals.
DISCUSSION
We review a trial court ruling on a motion to vacate a judgment pursuant to section 473, subdivision (b) on the grounds of "`mistake, inadvertence, surprise, or excusable neglect " for an abuse of discretion. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.) The appropriate test for an abuse of discretion is whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered. (In re Marriage of Connolly (1979) 23 Cal.3d 590, 598.) Appellate courts will disturb discretionary trial court rulings only upon a showing of a clear case of abuse and a miscarriage of justice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 331.)
"It is the policy of the law to favor, whenever possible, a hearing on the merits. Appellate courts are much more disposed to affirm an order [on a motion to set aside a default or a default judgment] when the result is to compel a trial on the merits than when the default judgment is allowed to stand. [Citation.] Therefore, when a party in default moves promptly to seek relief, very slight evidence is required to justify a trial courts order setting aside a default." (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478.) "Because the law favors disposing of cases on their merits, `any doubts in applying section 473 must be resolved in favor of the party seeking relief from default [citations]. Therefore, a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits. " (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980.)
David asserts on appeal that the motion to set aside the default judgment in this case was in fact D & Ds "fifth motion" to that effect, and was already considered and denied by the court previous to its grant in this instance. Specifically, David asserts this motion was in fact an improper motion for reconsideration under section 1008, and should have been denied.
Davids argument is premised on the notion that the default and the default judgment were one in the same, when in fact they are different procedures. (Cisneros v. Vueve (1995) 37 Cal.App.4th 906, 910 [" `[T]he default and default judgment are separate procedures "].) The motion under consideration in this appeal was a motion to set aside the default judgment, not the default as had been considered in the previously filed motions by D & Ds former counsel, Gonzales.
Therefore, the current motion was in fact the first and only motion to set aside the default judgment.
Here, D & Ds newly hired counsel filed the motion to set aside default under section 473, subdivision (b)s mandatory provisions for attorney mistake or neglect, and he timely filed the motion within the six month time period after the judgment was entered. (See, e.g., Sugasawara v. Newland (1994) 27 Cal.App.4th 294, 297.) In addition, the motion included affidavits attesting to attorney mistake, inadvertence, or neglect as causing the entry of default judgment in this case.
Moreover, and of particular importance here is the fact that until D & Ds motion to set aside the default judgment, the trial court was unaware that D & Ds former attorneys mistake and inadvertence in allowing the default to be entered in the first instance was caused by his terminal illness. Upon considering the fact that D & Ds former attorney was dying from AIDS at the time he failed to file the answer to the complaint, resulting in a default and default judgment, the court granted the motion to set aside. We find no abuse of discretion in the trial courts decision on this motion.
DISPOSITION
The order setting aside the default judgment and default is affirmed.
We Concur:
PREMO, J.
ELIA, J. --------------- Notes: All further statutory references are to the Code of Civil Procedure.