Opinion
B164212.
10-30-2003
THOMAS S. L. KUNG et al., Plaintiffs and Respondents, v. MING TER CHEN et al., Defendants and Appellants.
Cogswell Nakazawa & Chang, Peiwen Chang and Theodore W. Frank for Defendants and Appellants. Wu & Cheung and Mark H. Cheung for Plaintiffs and Respondents.
INTRODUCTION
Defendants Ming Ter Chen, Grace Tu Chen and Lark Ellen Apartments, a partnership, appeal from an order denying their motion to be relieved from default and a default judgment. They contend that the trial court abused its discretion in denying the motion, in that they established the existence of a reasonable mistake of fact. For the reasons set forth below, we disagree.
PROCEDURAL AND FACTUAL BACKGROUND
The instant litigation arose from a partnership dispute between defendants, the majority general partners, and plaintiffs, the minority partners. Plaintiffs Thomas S. L. Kung and Sau Tuen Kung sued defendants sometime before April 17, 2002, on which date plaintiffs filed a first amended complaint alleging breach of the partnership agreement, breach of fiduciary duty, fraud and conversion. They sought dissolution of the partnership and an accounting, as well as imposition of a constructive trust. Plaintiffs effected substituted service on defendants on May 20, 2002, as defendant Ming Ter Chen acknowledges.
On July 12, 2002, plaintiffs requested and received entry of default. On July 31, 2002, they requested a default judgment against defendants, which they received on August 9, 2002. Plaintiffs gave defendants timely notice of these actions. Defendants waited until October 31, 2002, after they discovered that plaintiffs sought to enforce the judgment in Nevada, to seek relief from the default and default judgment.
DISCUSSION
Code of Civil Procedure section 473, subdivision (b), permits a court to relieve a party from a judgment or order taken not more than six months earlier "through his or her mistake, inadvertence, surprise, or excusable neglect." A motion for relief from default lies within the courts sound discretion, however, and will not be reversed on appeal unless that discretion clearly has been abused and the trial courts determination exceeds the bounds of reason under the circumstances. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233; In re Marriage of Connolly (1979) 23 Cal.3d 590, 597-598.)
Inasmuch as there is a strong policy favoring relief from default, we apply section 473 liberally. (Carrasco v. Craft (1985) 164 Cal.App.3d 796, 803.) We resolve any doubts as to the sections application in favor of the party seeking relief. (Elston v. City of Turlock, supra, 38 Cal.3d at p. 233.) The moving party has the burden of showing entitlement (Marcotte v. Municipal Court (1976) 64 Cal.App.3d 235, 239), demonstrating that there was a reasonable cause for default, and must act diligently in seeking relief. (Elston v. City of Turlock, supra, 38 Cal.3d at p. 234.)
While we scrutinize more carefully an order denying relief than one granting relief (Jade K. v. Viguri (1989) 210 Cal.App.3d 1459, 1473; Lovato v. Santa Fe Internat. Corp. (1984) 151 Cal.App.3d 549, 554), all presumptions favor the correctness of the trial courts ruling. The appellant must establish that the court abused its discretion (Slawinski v. Mocettini (1963) 217 Cal.App.2d 192, 198).
For a mistake of fact to justify relief, one must understand the facts to be other than they are (Gilio v. Campbell (1953) 114 Cal.App.2d Supp. 853, 857), and that understanding must be excusable (Buckert v. Briggs (1971) 15 Cal.App.3d 296, 301). The mistake must be one that might have been made by a reasonably prudent person in the same circumstances. (Dingwall v. Vangas, Inc. (1963) 218 Cal.App.2d 108, 113.) It must appear affirmatively from the evidence; it will not suffice in the abstract. (Cf. Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 900.)
Only one of the defendants, Ming Ter Chen, presented evidence in support of the motion to set aside the default and default judgment. According to Mr. Chen, he was out of town when the summons and first amended complaint were served on him by means of substituted service on May 20, 2002. He mistook this lawsuit for another suit with a similar name and mistakenly believed that his attorney, George Chuang, would handle the matter.
Neither of these beliefs was reasonable. The caption of the first amended complaint in this matter clearly reads "Thomas S. L. Kung and Sau Tuen Kung, Plaintiffs," while the caption of the complaint in the earlier lawsuit clearly reads "Si-Ping Kung and Anne Kung, Plaintiff[s]." Moreover, the earlier Kung suit had resulted in a favorable judgment that plaintiffs were in the process of appealing when defendants were served on May 20, 2002. Under these circumstances, no reasonably prudent individual would conclude that the summons and first amended complaint with which defendants were served pertained to the earlier Kung lawsuit.
Mr. Chens belief that Attorney Chuang would handle the instant matter is equally unreasonable. Attorney Chuang had sent defendants a letter on December 19, 2001, advising them that he and his firm were withdrawing from representation in the earlier Kung suit. Attorney Chuang followed through with a motion to be relieved as counsel, which the court granted on March 21, 2002, and gave defendants notice of the courts ruling. Once again, no reasonably prudent person would have believed under these circumstances that Attorney Chuang still represented defendants in the earlier Kung suit and thus would handle the instant matter.
In short, any mistake of fact Mr. Chen might have made was unreasonable. The trial court therefore did not abuse its discretion in denying defendants motion to be relieved from default.
The order is affirmed.
We concur: VOGEL (MIRIAM A.), J. and MALLANO, J.