Opinion
F085107
11-06-2023
PARMJIT GREWAL, Plaintiff and Respondent, v. LOGAN K. LAWRENCE, Defendant and Appellant.
H. Wayne Green and John C. Green for Defendant and Appellant. Law Offices of William L. Cowin, William L. Cowin and Cathleen Anne Cowin for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. 16CECG00177, Kimberly A. Gaab, Judge.
H. Wayne Green and John C. Green for Defendant and Appellant.
Law Offices of William L. Cowin, William L. Cowin and Cathleen Anne Cowin for Plaintiff and Respondent.
OPINION
DETJEN, J.
On May 23, 2017, the Fresno County Superior Court entered a default against defendant and appellant Logan K. Lawrence and in favor of plaintiff and respondent Parmjit Grewal. Lawrence filed a motion to set aside the default and for leave to defend the action, which was denied. A default judgment was subsequently entered August 12, 2022. Grewal was awarded $283,765.72 in compensatory damages and $3,674.11 in costs.
On appeal, Lawrence contends (1) the superior court "abused its discretion when it denied [his] motion to set aside the default judgment"; (2) the default judgment "is void because it failed to account for [a $45,000] settlement" with some codefendants; and (3) the judgment award "should be reduced to reflect [said] settlement." (Boldface omitted.)
We conclude the superior court did not abuse its discretion when it denied Lawrence's set-aside motion. We also conclude the default judgment is partially void and should be modified.
BACKGROUND
On January 21, 2016, Grewal-"individually and as administrator of the Grewal Family Trust Dated July 27, 2001"-filed a lawsuit against Steven Samuelian, Houry Samuelian, and "LAWRENCE K. LOGAN dba ALTA CUSTOM HOMES," among others, alleging various causes of action pertaining to construction defects. In early May 2017, Grewal filed a request for entry of default against Lawrence. The court denied the request because the complaint incorrectly identified Lawrence as "LAWRENCE K. LOGAN." Grewal filed an "EX PARTE MOTION PURSUANT TO [CODE OF CIVIL PROCEDURE] § 473(a) TO CORRECT CLERICAL ERROR RE DEFENDANT'S NAME AND FOR ENTRY OF DEFAULT," stating Lawrence's "first and last names were inadvertently reversed in the complaint" and asking the court to "correct the clerical error to reflect defendant's name as LOGAN LAWRENCE dba ALTA CUSTOM HOMES." The court granted the application. On May 23, 2017, Grewal filed another request for entry of default. That same day, the court granted the request.
On or around October 17, 2018, Grewal filed a "NOTICE AND MOTION FOR AN ORDER FOR COURT'S DEFAULT JUDGMENT AGAINST LOGAN K.
LAWRENCE dba ALTA CUSTOM HOMES." On November 26, 2018, the court denied the motion.
On December 17, 2018, Lawrence filed a "MOTION TO VACATE DEFAULT AND FOR LEAVE TO DEFEND THE ACTION." In the accompanying "POINTS AND AUTHORITIES," he argued:
"1) Code of Civil Procedure section 473(d)
"This motion to vacate a default is made under Code of Civil Procedure section 473(d) on the grounds that the default is void because the complaint did not properly name this moving party. LOGAN LAWRENCE was erroneously sued and attempted service was made on a LAWRENCE K. LOGAN instead. Until this motion, Logan Lawrence has not made a general appearance in this case or submitted himself to the personal jurisdiction of this Court. [¶] . . . [¶]
"There is no time limit to file a motion to vacate a void order under Code of Civil Procedure section 473(d). The order of default is void as a matter of law for lack of personal jurisdiction due to improper service of summons, because the moving party was not properly named in the Complaint so until now, the Court has lacked personal jurisdiction over this moving party thus the default was improperly entered. A court can lack fundamental authority over the moving party, making its order void. [Citation.] A judgment is void if the court lacked jurisdiction over the moving party, if the defendant was not validly served with summons and complaint. [Citation.]
"2) California Code of Civil Procedure section 473.5
"This motion to vacate a default is also based on California Code of Civil Procedure section 473.5 because the service of the summons and complaint on the moving party, as a matter of law, did not result in actual notice to defend the lawsuit, and his lack of actual notice was not caused by any avoidance of service or inexcusable neglect. This moving party lacked actual notice because he was not properly named in the Complaint and he had no privity of contract with the plaintiffs. LOGAN LAWRENCE was erroneously sued and attempted service was made on LAWRENCE K. LOGAN. [¶] . . . [¶]
"3) discretionary relief under [Code of Civil Procedure] section 473(b): [¶] . . . [¶] "Judgment has not yet been entered against this moving party.
There are several requirements that the moving party must meet when filing a motion for discretionary relief under [Code of Civil Procedure] section 473(b). He must show that he: (a) timely moved the Court for relief from default, (b) make a sufficient showing of mistake, inadvertence, surprise or excusable neglect, (c) and provide a copy of his proposed pleading along with his motion, or file it as soon as possible before the hearing. Lawrence's declaration clearly shows that he believed the case had been dismissed against him, because he received default notices and dismissal notices simultaneously on 5/30/17, and took all of the pleadings to his lawyer James Wilkins who did nothing so naturally Logan thought he had done all that was necessary.
"The time for expiration of any deadline under this section should be equitably tolled by the extensive settlement negotiations between the parties and Logan Lawrence's extensive settlement gestures over many months and expenditures by the moving party benefiting and generally satisfying the plaintiffs as fully explained in the declaration of Logan Lawrence accompanying this application.
"4) Mandatory relief under [Code of Civil Procedure] § 473(b):
"The Fifth Appellate District stated in Rodriguez v. Brill that relief from a judgment of dismissal under the mandatory provisions of Code of Civil Procedure section 473(b) for inexcusable failures of the defaulting party's attorney, is available following a terminating sanction. A judgment that effectively implements a terminating sanction for purposes of section 473(b);
Lawrence was likely referring to Rodriguez v. Brill (2015) 234 Cal.App.4th 715.
"The trial court did not make an explicit finding about the cause of the termination, the record did not disclose plaintiff's conduct was a contributing factor in causing the terminating sanction. Accordingly, the underlying order denying relief was reversed. In the instant case the declarations of Logan Lawrence and [Lawrence's current attorney] H. Wayne Green clearly describe the shameful attorney neglect that caused the entry of default against this moving party."
In an accompanying declaration, Lawrence averred:
"3) In 2003 I became a general building contractor and was a professional general contractor from 2003 to 2011 during which time I built 122 houses in Fresno County.... I did business as Alta Custom Homes that was the fictitious business name for my sole proprietorship. One of the last homes I built was the one that is the subject of this litigation. I was misnamed in the Complaint as Lawrence K. Logan dba Alta Custom Homes. [¶] . . . [¶]
"5) At the time I constructed the subject house in 2011, I carried general liability insurance on my business with United Specialty Insurance Company.
"6) I initially built the subject house for a Steve Samuelian in 2011, who sold it to the plaintiffs about eight months later....[¶] . . . [¶]
"10) I received the summons and complaint in May of 2016[.] In May of 2017, I was served with Request to enter defaults, simultaneously with two dismissals of the case. I was also served with a request into default judgment with no money damages specified and with numerous other documents. I believed that I had been dismissed from the lawsuit by the various dismissals filed.
"11) Plaintiff's lawyer invited me to participate in a mediation before mediator Howard Broadman, in May of 2017. I did so. [¶] . . . [¶]
"13) The mediator recommended that I obtain counsel and referred me to Fresno attorney Jim Wilkins and I followed the mediator's advice. In June 2017 shortly after the mediation, I called upon Fresno attorney Jim Wilkins and sent him all the documents with which I had been served in the case including two dismissals and requests to answer default. In June 2018 I sent him all the documents and referred him to my liability insurance carrier United Specialty Insurance Company. Several weeks later Mr. Wilkins informed me that the insurance company had gone out of business. Mr. Wilkins never advised me or made any formal appearance for me or protected my interests in this case in any way. Mr. Wilkins never told me that I must do anything further to protect my interests. I did not know anything about my rights or remedies.
"14) When I received several copies of the dismissals of the case in May of 2017, I thought I had been dismissed and even though Mr. Wilkins never formally appeared for me, I didn't believe any actions were necessary since I understood that the case had already been dismissed. At the mediation, the other parties tried to work out some form of financial compensation involving another defendant that had appeared at the mediation.
"15) Until three weeks ago, I did not recognize the case was still pending against me until I received a further request for default, and this one included a request for specific damages. Money damages had not been requested or specified before. When I received this last request I immediately retained the services of my attorney H. Wayne Green who has advised me and filed this response in my behalf."
On February 13, 2019, Grewal filed an "OPPOSITION TO MOTION TO VACATE DEFAULT AND FOR LEAVE TO DEFEND THE ACTION." In an accompanying "REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF OPPOSITION TO MOTION TO VACATE DEFAULT," Grewal asked the court to take judicial notice of a printout from the Contractors State License Board, which displayed the license number ("838406") and address ("360 W BEDFORD #102 FRESNO, CA 93711") of Alta Custom Homes. In an accompanying declaration, Grewal's attorney William L. Cowin averred a mediation between Grewal and the Samuelians took place in May 2018 and Lawrence participated "[o]n behalf of the SAMUELIANS" even though "he had already been defaulted." Attached to Cowin's declaration were the following documents: (1) a proof of service of summons showing Lawrence was personally served the summons and complaint on May 9, 2016, at "360 W. BEDFORD #102 FRESNO, CA. 93711"; and (2) e-mail correspondence between Lawrence and Cowin following receipt of the summons and complaint, i.e., between July and September 2016.
On March 5, 2019, the court issued an order denying Lawrence's motion. It explained:
"Defendant first argues that vacating the default is proper under Code of Civil Procedure section 473, subdivision (d) ('section 473(d)'), which provides:
"The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order. [¶] (Id., emphasis added.)
"Defendant argues that the 'default is void' because the summons served on him named the person served as 'Lawrence K. Logan.' Neither the complaint nor the summons properly named him. Thus, he argues, the court lacked personal jurisdiction over him when default was entered.
"The faulty reasoning with this argument is that the default was neither a judgment nor an order. It was entered by a ministerial act of the clerk, as provided by law. Thus, it is not clear that section 473(d) applies, at least directly. Defendant provided no authority for this argument. Even so, in this case, section 473(d) might be found to apply to the extent plaintiff was able to enter default against the correctly-named defendant, 'Logan K. Lawrence dba Alta Custom Homes,' as opposed to entering it against 'Lawrence K. Logan (etc.)' due to the court order plaintiff obtained on May 3, 2017 which corrected defendant's name. Defendant is, in effect, arguing that this order should be set aside as void, which would in turn render the default void.
"However, that is not a void order. As plaintiff noted when requesting leave to correct defendant's name in May 2017, if he had obtained a judgment against defendant under the incorrect name, the court would have jurisdiction to amend the judgment to correct the error in the name under the 'idem sonans' doctrine. [Citation.] This doctrine depends on the names being 'substantially the same.' [Citation.] Plaintiff argued that there is no reason this doctrine should not apply where the names were merely reversed, as here. The court agreed, which is why it ordered the correction in the name.
"The evidence that plaintiff presented when requesting for the name correction showed that the corrected name, Logan Lawrence, was clearly the same person who had been designated as 'Lawrence K. Logan.' The court took judicial notice of the contractor's license at issue in the complaint, which showed that the contractor name, Alta Custom Homes, License #838406, had the same address as the one where defendant 'Lawrence K. Logan' was personally served with the Summons and Complaint on May 9, 2016. Plaintiff's counsel presented evidence of several emails back and forth with Mr. Lawrence regarding the lawsuit and the repairs, dated after the lawsuit was filed, providing clear evidence that defendant had been informed about the lawsuit due to the service on him.
"When considering plaintiff's request to correct the name, the court also considered whether defendant would be prejudiced by the order allowing the correction and found there was no prejudice, since Mr. Lawrence had received ample notice of this action and had opportunity to respond but failed to file an answer. Given defendant's interaction with plaintiff's counsel after being served, it was clear that the clerical error with his name had not confused Mr. Lawrence regarding the fact that he was the defendant in this lawsuit. The court cannot find that its order allowing the name correction is a void order, and thus section 473(d) does not apply. [¶] . . . [¶]
"Next, defendant argues that his default should be set aside under Code of Civil Procedure section 473.5 ('section 473.5'), because the service of the summons and complaint did not, as a matter of law, result in actual notice to him because of the clerical error in his name. The purpose of this section is to provide relief where there has been proper service of summons, but the defendant nonetheless did not find out about the action in time to defend; generally this relates to cases where service was by publication. [Citation.]
"However, section 473.5 will not aid defendant here. First, defendant cannot credibly claim to have no actual notice of this action when he himself admits he 'received the summons and complaint in May of 2016.' [Citation.] As discussed above, the fact that his first and last name were reversed obviously did not confuse defendant, as his declaration gives abundant evidence that he knew that he ('dba' Alta Custom Homes) was the target of the lawsuit, and not some unknown person named Lawrence K. Logan. In particular, the identification of his business name would have been ample actual notice of the lawsuit. Defendant's own motion admits the 'extensive settlement negotiations between the parties and [defendant's] extensive settlement gestures over many months.['] [Citation.] Defendant had actual notice.
"Second, the motion is untimely under section 473.5, since it must be filed within a 'reasonable time,' and in no event later than two years after entry of default judgment, or 180 days after service of written notice that such default or default judgment has been entered, whichever comes first. [Citation.] The two-year period is inapplicable here as no judgment has been entered. Thus, defendant had 180 days (six months) after service of the written notice of default to bring this motion. The Notice of Default was served [in] May 8, 2017, so the motion would have had to be filed before November 8, 2017, and it was not filed until many months thereafter. [¶] . . . [¶]
"Next, defendant seeks discretionary relief under Code of Civil Procedure section 473, subdivision (b) ('section 473(b)'), based on his mistake, inadvertence, surprise or excusable neglect in failing to respond to the complaint. Defendant declares that in 'May 2017' he was served with 'Request to enter defaults, simultaneously with two dismissals of the case,' which caused him to believe that he has been dismissed from the lawsuit. [Citation.] However, defendant proceeds to state that, subsequent to this event, he participated in mediation, and at the mediation the mediator recommended that he obtain counsel regarding this matter, which Mr. Lawrence then did. This appears to indicate defendant's awareness of the need to take action to defend himself, or to set aside the default. It certainly casts extreme doubt on defendant's claim to have believed he had been dismissed from the lawsuit, or that the entire lawsuit had been dismissed.
"Also, discretionary relief under section 473(b) is not available because the motion is untimely. A motion to set aside default must be filed 'in no case exceeding six months' from the entry of default. [Citation.] Defendant argues that this deadline should be 'equitably tolled' due to the 'extensive settlement negotiations between the parties and Logan Lawrence's extensive settlement gestures over many months and expenditures by the moving party benefiting and generally satisfying the plaintiff[],' but he offers no authority supporting application of the judge-made doctrine of equitable tolling to relief under section 473(b). [Citation.] [¶] . . . [¶]
"Finally, defendant seeks relief under the mandatory provisions of section 473(b), which is provided where the defendant's attorney files an 'affidavit of fault' which takes the blame for leaving defendant in the position of having his/her default taken. Mr. Lawrence bases this request on the allegedly 'shameful attorney neglect' he suffered at the hands of the attorney he went to see after the mediation session. However, that attorney, James Wilkins, has not provided a declaration of fault. Instead, defendant and his current attorney, H. Wayne Green, argue that mandatory relief should be granted on the strength of their declarations. This contention is erroneous: the mandatory relief provision is only available where the erring attorney himself/herself files the declaration attesting to the error(s) causing the client's default. There is no exception; even an abandoned client cannot obtain mandatory relief, but must rely on the discretionary provisions of section 473(b). [Citation.]"
On February 19, 2020, Grewal filed a request for court judgment against Lawrence. On April 8, 2020, the court denied the request. On July 13, 2021, Grewal filed a proposed order for default judgment against Lawrence. An attached "PLAINTIFF'S DAMAGES DEMAND" sought (1) $283,765.72 in compensatory damages "Less Samuelians['] [$45,000] payment to Plaintiff via settlement agreement at Mediation," a total of $238,765.72; and (2) $3,674.11 in costs. The demand noted "[a]ll defendants except LOGAN K. LAWRENCE, dba ALTA CUSTOM HOMES, have been dismissed." On August 12, 2022, the court signed the proposed order and awarded Grewal $283,765.72 in compensatory damages and $3,674.11 in costs.
DISCUSSION
I. The trial court did not abuse its discretion when it denied Lawrence's motion to set aside the default.
Lawrence's set-aside motion cited four statutory bases for relief. On appeal, however, he only develops arguments as to two of them: Code of Civil Procedure section 473.5 and section 473, subdivision (b)'s discretionary relief provision. Therefore, we will only address these grounds. (See New Livable California v. Association of Bay Area Governments (2020) 59 Cal.App.5th 709, 711 [scope of appellate review limited to issues adequately raised and briefed]; Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 9, fn. 1 ["To the extent the contentions raised in the opening brief do not address all causes of action but relate to only some of them, issues as to the other causes of action are deemed abandoned."]; Paterno v. State of California (1999) 74 Cal.App.4th 68, 106 ["An appellate court is not required to examine undeveloped claims, nor to make arguments for parties."].)
Subsequent statutory citations refer to the Code of Civil Procedure.
a. Standard of review
"We review a trial court's decision to grant or deny relief under section 473.5 for abuse of discretion." (Rios v. Singh (2021) 65 Cal.App.5th 871, 885.) Likewise," '[a] ruling on a motion for discretionary relief under section 473 shall not be disturbed on appeal absent a clear showing of abuse.' [Citation.]" (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.)
"The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason." (Anastos v. Lee (2004) 118 Cal.App.4th 1314, 1318-1319.) "The burden is on the complaining party to establish abuse of discretion, and the showing on appeal is insufficient if it presents a state of facts which simply affords an opportunity for a difference of opinion." (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 118.) Moreover, "all presumptions will be made in favor of the correctness of the order" (Lint v. Chisholm (1981) 121 Cal.App.3d 615, 620) and a reviewing court is "required to uphold [a discretionary] ruling if it is correct on any basis, regardless of whether such basis was actually invoked" (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32).
b. Analysis
"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." (§ 473.5, subd. (a).)"' "[A]ctual notice" in section 473.5 "means genuine knowledge of the party litigant ...." [Citation.]' [Citation.]" (Ellard v. Conway (2001) 94 Cal.App.4th 540, 547.)
Here, while the complaint originally and mistakenly identified Lawrence as "LAWRENCE K. LOGAN" (instead of "LOGAN K. LAWRENCE"), the record demonstrates (1) Lawrence "did business as Alta Custom Homes"; (2) the complaint affixed "dba ALTA CUSTOM HOMES" to the clerically erroneous name; (3) Lawrence was personally served the summons and complaint on May 9, 2016, at the registered address of his sole proprietorship; (4) Lawrence corresponded with Grewal's counsel Cowin over e-mail between July and September 2016; and (5) Lawrence claimed he engaged in "extensive settlement negotiations," made "extensive settlement gestures over many months," and incurred "expenditures . . . benefiting and generally satisfying [Grewal]." Grewal's request for entry of default was granted on May 23, 2017, more than a year after Lawrence was first served. "It was reasonable for the court to find [Lawrence] had actual notice of [Grewal's] action" (Ellard v. Conway, supra, 94 Cal.App.4th at p. 548) and "could reasonably conclude [Lawrence] had actual notice in time to defend" (ibid.).
Thus, we need not address the court's finding that Lawrence's motion was also untimely.
ii. Section 473, subdivision (b)'s discretionary relief provision
"The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." (§ 473, subd. (b); accord, Henderson v. Pacific Gas &Electric Co. (2010) 187 Cal.App.4th 215, 224-225 (Henderson).) "The discretionary relief provision of section 473, subdivision (b) applies to any 'judgment, dismissal, order, or other proceeding.'" (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 254; see Henderson, supra, at p. 229 [discretionary relief" 'not limited to defaults, default judgments, and dismissals' "].)
" 'Mistake is not a ground for relief under section 473, subdivision (b), when "the court finds that the 'mistake' is simply the result of professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law ...." [Citation.] Further, "[t]he term 'surprise,' as used in section 473, refers to' "some condition or situation in which a party . . . is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against."' [Citation.]" [Citation.] Finally, as for inadvertence or neglect, "[t]o warrant relief under section 473 a litigant's neglect must have been such as might have been the act of a reasonably prudent person under the same circumstances. The inadvertence contemplated by the statute does not mean mere inadvertence in the abstract. If it is wholly inexcusable it does not justify relief."' [Citation.]" (Henderson, supra, 187 Cal.App.4th at pp. 229-230.)
As mentioned, Lawrence was personally served the summons and complaint on May 9, 2016, and Grewal's request for entry of default was granted on May 23, 2017. During the intervening one-year-plus period, Lawrence communicated via e-mail with Cowin and apparently made settlement overtures, but he did not file any response to the complaint. Without anything more, a trial court could reasonably attribute Lawrence's inaction to carelessness, which is "not akin to excusable neglect." (Doyle v. Rice Ranch Oil Co. (1938) 28 Cal.App.2d 18, 19; see Paulekas v. Paulekas (1953) 117 Cal.App.2d 73, 77 ["Where a liberal amount of time has elapsed from the time of the service of summons the defendant cannot maintain that he was guilty of excusable neglect in not defending the action."].)
Thus, we need not address the court's finding that Lawrence's motion was also untimely.
Lawrence argued below-and maintains on appeal-he believed the case was dismissed and his former attorney Wilkins was blameworthy. According to the record, however, Lawrence purportedly became aware of two dismissals (which pertained to other defendants) and retained Wilkins after the entry of default and therefore cannot rationalize his earlier idleness.
II. The default judgment is partially void and should be modified.
"The question of whether a judgment is void is typically framed as a question of whether the court rendering the judgment lacked jurisdiction." (Grados v. Shiau (2021) 63 Cal.App.5th 1042, 1050 (Grados).)" '[Q]uestions of jurisdiction are never waived and may be raised for the first time on appeal.' [Citation.]" (Ibid.)
Lawrence contends "the award by the trial court was in excess of their [sic] legal power" because the compensatory damages "did not take into account the prior settlement of $45,000 dollars." In view of the record (see ante, at p. 10), we agree.
According to Grewal, Lawrence asserts the settlement between Grewal and the Samuelians lacks good faith. However, Lawrence does not raise such a claim in his brief.
At oral argument, Cathleen Cowin-appearing for Grewal-stated her belief the $45,000 settlement had been deducted and asked us to review a record citation in the respondent's brief. The cited document-a CIV-100 "REQUEST FOR ENTRY OF DEFAULT" form filed by William Cowin-identified the $45,000 "Samuelian settlmt" as one of the "Credits acknowledged" and calculated a compensatory damages award of $238,765.72 ($283,765.72 minus $45,000). The August 12, 2022 order awarding $283,765.72 in compensatory damages (instead of $238,765.72) clearly demonstrates the court did not account for the settlement.
"A default judgment fatally deficient for award of excess relief may be set aside without vitiating the defendant's default." (Jonson v. Weinstein (1967) 249 Cal.App.2d 954, 958; see ibid. ["The default and default judgment are separate procedures. The latter may be set aside without disturbing the former."].)" 'When a default judgment is partially void for being excessive, an appellate court will strike the excess and affirm the valid portion.' [Citation.]" (Grados, supra, at p. 1057.) We shall do so here.
DISPOSITION
The order denying Lawrence's set-aside motion is affirmed. The default judgment shall be modified to factor in the $45,000 settlement reached by Grewal and the Samuelians. We affirm a default judgment awarding Grewal $238,765.72 in compensatory damages and $3,674.11 in costs. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3), (5).)
WE CONCUR: POOCHIGIAN, Acting P. J., SNAUFFER, J.