Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, No. LC076200, Richard Adler, Judge.
John Fu for Defendant and Appellant.
Zwicker & Associates, Raymond J. Lee and Ingrid M. Causey for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant George Kosmides (Kosmides) appeals an order denying his motion to vacate a default and default judgment obtained by plaintiff and respondent HICA Education Loan Corporation by and through its servicing agent Sallie Mae, Inc. (HICA).
The essential issue presented is whether Kosmides was entitled to mandatory relief based on counsel’s affidavit of fault. (Code Civ. Proc., § 473, subd. (b).)
All further statutory references are to the Code of Civil Procedure, unless otherwise specified.
On the record presented, the trial court properly concluded the default was not attributable to counsel. Therefore, the order is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
On November 2, 2006, HICA filed suit against Kosmides to recover a delinquent student loan in the principal sum of $36,919.
On February 21, 2007, HICA filed a case management statement which indicated Kosmides’s attorney “contacted [HICA’s] counsel, advising representation of [Kosmides] and advised an Answer on [Kosmides’s] behalf would be filed after 2/14/07. Based on this representation, [HICA] will not file a Request for Entry of Default.”
Kosmides failed to file an answer.
On March 23, 2007, HICA filed a request for entry of default and the clerk entered the default as requested on that date.
On May 7, 2007, Kosmides, in propria persona, purported to file an answer. On May 18, 2007, at the case management conference, the trial court ordered the answer stricken and set an order to show cause hearing re entry of default judgment.
1. First unsuccessful motion to vacate entry of default.
Kosmides filed a motion to set aside the entry of default. Kosmides’s supporting declaration stated in relevant part: “I thought Sallie Mae . . . had again made a mistake by filing this lawsuit. As soon as I found out about this lawsuit, I contacted Mr. Nubar in plaintiff’s counsel’s office. He informed me that I would have until May 7 to file the Answer. I relied upon that.”
On or about June 20, 2007, the trial court denied Kosmides’s motion to set aside the entry of his default. It ruled, inter alia: “The Court notes that [Kosmides] does not deny service of the summons and complaint or that he was unable to answer before his default was entered. Rather, his argument is that he thought that the lawsuit was ‘a mistake.’ [Kosmides’s] own attorney further indicates that his ‘delay in filing his answer was a direct result of his lack of familiarity with the legal system. . . .
“Lack of familiarity with the legal system is not a basis for relief under CCP § 473 since [Kosmides] was given multiple opportunities to come to Court to inquire as to the status of this action and to determine, as [Kosmides] puts it, whether this action was ‘a mistake.’ Moreover, [Kosmides’s] claim of ignorance of the legal system is contradicted by the Case Management Statement filed by Plaintiff on March 29, 2007, wherein the following was noted: [¶] Attorney Francis C. Hung, Jr. contacted Plaintiff’s counsel, advising representation of [Kosmides] and advised an Answer on [Kosmides’s] behalf would be filed after 2/14/07. . . .
“Thus, [Kosmides] knew of the lawsuit before default was entered, retained an attorney by the name of Francis Hung, Jr., and represented that he would file an answer by February 14, 2007. Such does not lend credence to the claim that [Kosmides] thought the lawsuit was a ‘mistake’ and, thus, could be ignored, or that he was ignorant of the legal system.”
2. Entry of default judgment.
On July 2, 2007, the trial court entered a default judgment against Kosmides in the sum of $43,546.16, including damages, prejudgment interest, attorney fees and costs.
3. Renewed motion to set aside default.
On July 10, 2007, Kosmides, represented by counsel, filed another motion to set aside the entry of default. The motion was based on section 1008, subdivision (b), on the ground of new facts, as well as on section 473, subdivision (b), providing for mandatory relief based on an attorney’s affidavit of fault.
The motion filed July 10, 2007 sought to set aside the entry of default. However, by that time, the default had proceeded to a default judgment.
In the motion, Kosmides asserted that on July 6, 2007, he discovered a critical fact, namely, that his previous attorney, Francis Hung, failed to inform him of the need to file an answer and the time in which to file an answer.
The motion was accompanied by a declaration in which Hung stated: “2. On or about February 16, 2007, I contacted . . . plaintiff’s counsel, on Mr. Kosmides’ behalf. I requested an extension of time for filing an Answer for Mr. Kosmides. He agreed to grant me an open extension to file an Answer. [¶] 3. I never received a call from plaintiff’s counsel informing me of a deadline to file an Answer. As such, I did not advise Mr. Kosmides of his deadline to file an Answer. [¶] 4. Furthermore, he ended up not retaining me.” (Italics added.)
4. Trial court’s ruling.
On July 24, 2007, the trial court denied the motion in a written ruling which stated in relevant part: “[Kosmides] has not presented sufficient evidence showing why he could not have presented the evidence contained in this motion at the earlier hearing. [Kosmides] could have easily noted in his earlier declaration that he was never informed by attorney Francis Hung of the time in which to file an Answer, or that attorney Hung could not have been contacted, or even deposed, earlier. However, [Kosmides] never presented such evidence, and there is nothing in this motion showing why these new facts could not have been presented earlier. [Citation.]
“However, even if this Court were to consider the evidence presented by [Kosmides], there are insufficient facts to grant the motion. [¶] . . . [¶] In this motion, [Kosmides] seeks to set aside his default based on the declaration of attorney Francis Hung. As the declaration of Francis Hung notes: [¶] I never received a call from plaintiff’s counsel informing me of a deadline to file an Answer. As such, I did not advise Mr. Kosmides of his deadline to file an Answer. [¶] Furthermore, he ended up not retaining me.
“The Court would note that there is no duty of Plaintiff’s counsel to inform a Defendant of when he or she is required to file an Answer. Such is determined by statute. [Citation.] Moreover, there would be no requirement for Plaintiff’s counsel to advise attorney Hung since attorney Hung admits that [Kosmides] ‘ended up not retaining me.’ The Court would also note that [Kosmides] admits that he contacted counsel. As [Kosmides’s] earlier declaration noted: [¶] Since I was current with my Van Rue repayment, and based on the surrounding circumstances, I thought Sallie Mae, via [Plaintiff], had again made a mistake by filing this lawsuit. [¶] As soon as I found out about this lawsuit, I contacted Mr. Nubar in plaintiff’s counsel office.
“Thus, regardless of whether attorney Hung contacted Plaintiff’s counsel, [Kosmides] admits he was in contact with Plaintiff’s counsel. Thus, it is irrelevant as to whether attorney Hung was in contact with Plaintiff’s counsel.”
The trial court further “note[d] that [Kosmides] does not deny service of the summons and complaint or that he was unable to answer before his default was entered. Rather, his argument is that he thought that the lawsuit was ‘a mistake.’ Defendant’s own attorney further indicates that his ‘delay in filing his answer was a direct result of his lack of familiarity with the legal system.’ [Citation.]
“Moreover, the Court notes: (1) [Kosmides] was served with a Case Management Conference Statement on February 20, 2007 which shows that Defendant was seeking money for an unpaid student loan, (2) an Initial Status Conference was held on March 1, 2007, to which Defendant failed to appear, (3) a second Case Management Statement was filed on Defendant on March 27, 2007, which again shows that Defendant [sic] was seeking money for an unpaid student loan, (4) Defendant failed to appear at the Case Management Conference on April 3, 2007, (5) a third Case Management Statement was filed on Defendant on April 18, 2007, which again shows that Defendant [sic] was seeking money for an unpaid student loan and (6) Defendant failed to appear at the Case Management Conference on April 26, 2007.
“The Court would also note that the excuse offered by attorney Hung contradicts the earlier motion wherein Defendant’s own attorney further indicates that Defendant’s ‘delay in filing his answer was a direct result of his lack of familiarity with the legal system’ (see Declaration of [attorney] John Fu, paragraph 7) and not that he was waiting for an answer from Plaintiff’s counsel. [¶] Accordingly, per the foregoing, there is no factual reason to set aside the default.” (Italics added.)
On September 11, 2007, Kosmides filed notice of appeal from the July 24, 2007 order denying his motion.
An appeal lies from the denial of a motion made under section 473 to vacate a judgment. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 200, p. 276.)
CONTENTIONS
Kosmides contends: the set aside of the default was mandatory because his attorney admitted responsibility; he was promised an extension of time to file his answer; and absent good cause, refusal to set aside default is an abuse of discretion.
DISCUSSION
1. Trial court lacked jurisdiction to entertain Kosmides’s motion for reconsideration under section 1008.
As a preliminary matter, we address the motion for reconsideration under section 1008.
On July 2, 2007, the trial court entered a default judgment against Kosmides in the sum of $43,546.16. On July 10, 2007, Kosmides, represented by counsel, filed a motion to set aside the entry of default, pursuant to section 1008, subdivision (b), on the ground of new facts, as well as pursuant to section 473, subdivision (b), providing for mandatory relief based on an attorney’s affidavit of fault.
The trial court denied reconsideration on the ground Kosmides “has not presented sufficient evidence showing why he could not have presented the evidence contained in this motion at the earlier hearing.” The trial court’s ruling was correct in result, although based on an erroneous ground. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19.) After entry of judgment, the superior court lacks jurisdiction to entertain or decide a motion for reconsideration. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 859, fn. 29.) Therefore, Kosmides “could not have made a motion for reconsideration in the first place.” (Ibid.)
2. No merit to Kosmides’s contention he was entitled to mandatory relief under section 473 based on counsel’s affidavit of fault; trial court properly found the default was caused by actions of the client rather than attorney neglect.
In addition to seeking relief under section 1008, Kosmides’s motion invoked the mandatory relief provision of section 473, subdivision (b). The motion asserted “the default must be set aside because there is now an attorney admitting the error.”
a. General principles.
The mandatory relief provision of section 473, subdivision (b), states: “Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.” (Italics added.)
The “unless” clause is a causation testing device. (Cisneros v. Vueve (1995) 37 Cal.App.4th 906, 912.) “The statute mandates relief ‘unless the court finds that the default . . . was not in fact caused by the attorney’s mistake, inadvertence’ etc.” (Ibid.)
b. Trial court properly found the default could not be attributed to attorney Hung.
In the instant case, the trial court found the default was not in fact caused by counsel’s mistake. The trial court’s ruling states in relevant part: “The Court would also note that the excuse offered by attorney Hung contradicts the earlier motion wherein Defendant’s own attorney further indicates that Defendant’s ‘delay in filing his answer was a direct result of his lack of familiarity with the legal system’ (see Declaration of [attorney] John Fu, paragraph 7) and not that he was waiting for an answer from Plaintiff’s counsel. [¶] Accordingly, per the foregoing, there is no factual reason to set aside the default.” (Italics added.)
The trial court’s ruling is supported by the record.
In that earlier declaration, attorney Fu stated: “[Kosmides’s] delay in filing his answer was a direct result of his lack of familiarity with the legal system and his mistaken belief, which was an understandable one typically committed by a layperson.” (Italics added.)
In the subsequent affidavit of fault, attorney Hung stated: “3. I never received a call from plaintiff’s counsel informing me of a deadline to file an Answer. As such, I did not advise Mr. Kosmides of his deadline to file an Answer. [¶] 4. Furthermore, he ended up not retaining me.” (Italics added.)
Given the inconsistency between the two declarations, the trial court properly found the default was not in fact caused by attorney Hung’s neglect or mistake. Therefore, the trial court properly denied Kosmides’s motion for mandatory relief under section 473, subdivision (b).
On appeal, Kosmides also contends he was entitled to discretionary relief under section 473. However, Kosmides’s motion below did not seek discretionary relief under the statute. Therefore, Kosmides’s argument the trial court abused its discretion in denying relief under section 473 is not properly before this court.
DISPOSITION
The order refusing to vacate the default and default judgment is affirmed. HICA shall recover its costs on appeal.
We concur: CROSKEY, J., ALDRICH, J.