Opinion
A165041
09-25-2023
HOWARD LEE, Plaintiff and Appellant, v. YESSICA CAI, et al., Defendants and Respondents
NOT TO BE PUBLISHED
City &County of San Francisco Super. Ct. No. CCG21589581
CHOU, J.Plaintiff Howard Lee appeals from the trial court's order granting defendants and respondents Yessica Cai and Yifeng Chen's motion to set aside default and default judgment. In granting the motion, the court relied on both its statutory and equitable powers to grant relief from default, including when the default was the result of an extrinsic mistake. Lee argues that the motion was untimely because it was filed more than six months after the entry of default. Lee further argues that there was no extrinsic mistake here which warranted relief from default. We disagree and affirm.
I. BACKGROUND
Lee filed a complaint against Cai and her husband Chen for breach of contract and fraud. Following Cai and Chen's lack of response, Lee moved for entry of default on April 14, 2021. On April 27, 2021, the trial court entered default against Cai and Chen. On June 9, 2021, Cai and Chen filed in pro per a motion to set aside entry of default and default judgment (first motion). On July 7, 2021, the court took the motion off calendar based on the absence of a proof of service. On October 26, 2021, the court entered a judgment by default against Cai and Chen.
On December 8, 2021, Cai and Chen filed in pro per a second motion to set aside default and default judgment (second motion). Cai included a supporting declaration which stated that the first motion was filed through One Legal, a third-party litigation support company. The declaration further stated that One Legal informed Cai that it would serve the motion on Lee once it received a filed-endorsed copy and would file a proof of service. Cai stated that when she had not received a stamped copy of the motion in August 2021 after following up with One Legal, she contacted "various departments" of the court to ask about the status of the first motion. The court told Cai that she should be patient due to COVID-19 related delays. Cai then stated that she was shocked when she received a letter from the court in November 2021 that a "judgment was on file."
Lee opposed Cai and Chen's second motion, arguing that it was filed more than six months after the entry of default and therefore untimely pursuant to Code of Civil Procedure Section 473, subdivision (b). Lee did not, however, mention the first motion or address Cai's supporting declaration.
All further statutory references are to the Code of Civil Procedure unless otherwise specified.
On February 17, 2022, the trial court granted Cai and Chen's second motion and set aside the entry of default and default judgment. The court referenced both its statutory and equitable powers to grant relief from default and noted that the motion "was filed six weeks after default judgment, and California courts have a strong policy of deciding cases on their merits." The court further noted that relief from default was available for" 'extrinsic mistake.' "
Lee timely appealed.
II. DISCUSSION
A. Standard of Review
A decision to set aside a default judgment is "addressed to the sound discretion of the trial court." (Weitz v. Yankosky (1966) 63 Cal. 2d 849, 854.) We review the decision for abuse of discretion and, "in the absence of a clear showing of abuse of discretion where the trial court grants the motion, the appellate court will not disturb the order." (Ibid.)
B. Lack of Record Citations in Respondents' Brief
We first address Lee's argument that respondents' brief "should be ignored" because it fails to cite to the record at all. We agree that Cai and Chen had to support the arguments in their brief with record citations. (Cal. Rules of Court, rule 8.204(a)(1)(C).) But their failure to do so is not fatal because they are the respondents, and the burden ultimately rests upon Lee, as the appellant, to affirmatively demonstrate prejudicial error by the trial court. (Stevens v. Parke, Davis &Co. (1973) 9 Cal.3d 51, 70.) Thus, any deficiencies in the respondents' brief do "not absolve us of adjudicating the merits of" Lee's appeal. (In re Marriage of Everard (2020) 47 Cal.App.5th 109, 111, fn. 1 [affirming trial court order despite respondent's failure to file a brief].)
Although Cai and Chen failed to provide any record citations, they did at least refer to the register of actions in arguing that their first motion to set aside was timely filed but was taken off calendar based on One Legal's failure to file a proof of service. The register of actions indicates that a motion to vacate was filed on June 9, 2021, but was taken off calendar approximately one month later with a note, "no proof of service filed."
C. Trial Court Did Not Abuse its Discretion.
Lee spends most of his briefs arguing that the trial court abused its discretion by granting relief pursuant to section 473 because Cai and Chen's second motion was untimely. But the trial court also granted that motion due to extrinsic mistake under its equitable power. Although Lee contends the court abused its discretion in doing so, he simply asserts in conclusory fashion that Cai and Chen's "failure to act within six months was solely based on [their] inexcusable inaction" and that "there were no 'outside forces' that caused [their] inexcusable delay." These conclusory assertions are not sufficient to carry his "burden of affirmatively demonstrating the existence of prejudicial error." (Adams v. MHC Colony Park, L.P. (2014) 224 Cal.App.4th 601, 615, italics omitted.) Indeed, Lee makes no mention of the first motion filed by Cai and Chen and does not mention or refute their argument that One Legal's error constituted an extrinsic mistake. In any event, even if Lee had made more than conclusory assertions, he still cannot demonstrate that the court abused its discretion by granting Cai and Chen relief from default pursuant to its equitable power.
Because we affirm solely on this ground, we do not address whether the trial court abused its discretion by granting relief from default pursuant to section 473.
Courts have the equitable power to set aside a default judgment based on extrinsic fraud or mistake at any time. (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1300.) Extrinsic mistake is "a term broadly applied when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits." (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.) It includes the mistaken "reliance upon the mail or ministerial acts by other persons." (Weitz v. Yankosky (1966) 63 Cal.2d at 856.)
Here, Cai and Chen established extrinsic mistake based on the actions of One Legal, an independent third-party they hired to file and serve their first motion and the corresponding proof of service. According to Cai's declaration which Lee does not challenge, One Legal informed her that it would serve the first motion after it received a filed-endorsed copy and would file a proof of service with the court. Cai followed up with both One Legal and the trial court when she had not received a stamped copy of the motion by August 2021, and neither alerted her to any issues with the first motion. She was therefore surprised to learn in November 2021 that a judgment was on file. Chen also did not know what had happened because Cai handled the filing of the first motion and all communications with One Legal. Under these undisputed facts, One Legal's failure to serve the first motion or file a proof of service constituted an extrinsic mistake which unfairly cost Cai and Chen a hearing on the merits. Lee did not address, much less challenge, Cai and Chen's declarations below or in this appeal. Accordingly, Lee has not met his burden of establishing that the trial court abused its discretion in granting Cai and Chen relief from default pursuant to its equitable power.
III. DISPOSITION
The order granting the motion to set aside default and default judgment is affirmed. Respondents are entitled to recover their costs on appeal.
We concur. SIMONS, Acting P.J., BURNS, J.