Opinion
B316157
07-24-2023
JAMES LEE PADGETT, Plaintiff and Respondent, v. DAVID ADONIS HUBBARD, Defendant and Appellant.
Law Offices of Barak Isaacs and Barak Isaacs for Defendant and Appellant. James Lee Padgett, in pro. per., for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BC599103 Mark V. Mooney, Judge. Affirmed in part and reversed in part.
Law Offices of Barak Isaacs and Barak Isaacs for Defendant and Appellant.
James Lee Padgett, in pro. per., for Plaintiff and Respondent.
FEUER, J.
David Adonis Hubbard appeals from an order denying his motion to vacate the default and default judgment that were entered after the trial court struck his answer as a terminating sanction due to Hubbard's failure to appear at a trial setting conference. Hubbard contends the trial court abused its discretion in denying relief because he was not given notice of the hearing at which the court entered the terminating sanction. Given the lack of notice, Hubbard made a sufficient showing the default and default judgment were entered as a result of surprise, and the trial court abused its discretion in denying Hubbard's motion with respect to the default judgment under Code of Civil Procedure section 473, subdivision (b).
All further undesignated statutory references are to the Code of Civil Procedure.
However, Hubbard's motion to vacate was untimely as to entry of the default, and therefore the court did not abuse its discretion in denying the motion as to the default under section 473, subdivision (b). Nor was Hubbard entitled to relief under section 473, subdivision (d), for a void order. We reverse the order to the extent it denied relief from the default judgment and affirm the order as to the default.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Complaint, Entry of Default, and Default Judgment
James Lee Padgett filed this action as a self-represented litigant on October 23, 2015. The first amended complaint (complaint) filed on August 14, 2018 asserted causes of action against Hubbard, Jason Thomas Yates, and Jay Jay Industries, Inc. for breach of contract, unfair business practices, and breach of the implied covenant of good faith and fair dealing. The complaint alleged Hubbard knowingly made misrepresentations about the returns on an illegitimate credit leveraging program promoted by Yates and Jay Jay Industries, as a result of which Padgett invested in the program. Further, the defendants breached an agreement to return portions of Padgett's investment. The complaint sought as compensatory damages $26,060 in unreturned investment funds, plus interest, and punitive damages. On September 25, 2018 Hubbard, as a self-represented litigant, filed an answer with a general denial and eight affirmative defenses.
The trial court initially set the matter for a jury trial to be held on April 13, 2020. However, due to the COVID-19 pandemic, on March 17, 2020 the court on its own motion vacated the final status conference and trial dates and set a trial setting conference for May 14, 2020. On April 21 the court on its own motion continued the trial setting conference to July 8, 2020. The clerk certified that notice of the continuance was mailed to Hubbard.
Hubbard did not appear at the July 8, 2020 trial setting conference, and on the same day the trial court set for September 25, 2020 an order to show cause re: sanctions up to and including potential terminating sanctions for David Hubbard's failure to appear (OSC). The court continued the final status conference to September 25. The court ordered Padgett to give Hubbard notice of the OSC; it is undisputed that Padgett failed to do so. Hubbard did not appear at the September 25, 2020 hearing (September 25 hearing) on the OSC and final status conference, and the court struck his answer.
The trial court also dismissed Jay Jay Industries with prejudice for Padgett's failure to prosecute (§ 583.410).
On September 29, 2020 Padgett filed a request for entry of default, and the clerk entered the default the same day. The request for entry of default included a declaration of mailing, in which Padgett attested that he mailed a copy of the "Request for Entry of Default" to Hubbard. On July 6, 2021 the trial court entered a judgment by default against Hubbard in the amount of approximately $43,000, and the court clerk served notice of the entry of judgment on Padgett and Hubbard the same day.
The July 6, 2021 judgment awarded approximately $43,000 against both Hubbard and Yates. The trial court in 2019 struck Yates's answer for his failure to appear at the case management conference and order to show case hearing re terminating sanctions. Yates is not a party to this appeal.
B. Hubbard's Motion To Vacate the Default and Default Judgment
On July 23, 2021 Hubbard filed a motion to vacate the default and default judgment (motion to vacate) and to have his answer reinstated. In his supporting declaration, Hubbard averred that Padgett failed to comply with the court's July 8, 2020 order to provide Hubbard notice of the September 25 hearing on the OSC. Hubbard also attested he did not receive any documents notifying him of Padgett's request for entry of default against him. He first learned to his "surprise[]" that his answer had been stricken, Padgett had requested entry of default, and the default had been entered when he received from the clerk the July 6, 2021 notice of entry of the default judgment. In his memorandum, Hubbard argued he was entitled to relief under section 473, subdivisions (a) and (b), in that he had produced evidence of mistake, inadvertence, surprise or excusable neglect requiring relief. Hubbard also asserted the court's order granting terminating sanctions was excessive, "especially in light of the fact that [Hubbard] never received notice of the hearing that resulted in the ultimate imposition of the sanction, coupled with the fact that the Plaintiff, acting in pro per, was ordered to give notice of that hearing and failed to so."
Hubbard also argued he was entitled to relief under section 128, subdivision (a), which provides in relevant part, "Every court shall have the power to do all of the following: [¶] . . . [¶] (8) To amend and control its process and orders so as to make them conform to law and justice." Hubbard does not argue on appeal that the trial court should have vacated the judgment under section 128, subdivision (a), and the contention is forfeited. (Swain v. LaserAway Medical Group, Inc. (2020) 57 Cal.App.5th 59, 72 ["""Issues not raised in an appellant's brief are [forfeited] or abandoned."""].)
Padgett argued in his opposition that Hubbard received notice of the trial setting conference set for July 8, 2020, as shown by the clerk's proof of mailing, yet Hubbard failed to appear. Padgett admitted he failed to notify Hubbard of the court's orders made at the July 8, 2020 hearing, including the order setting the September 25 hearing on the OSC for possible terminating sanctions. However, Padgett argued Hubbard should have known about all scheduled hearings and orders in the case because the orders and documents setting the hearings are available on the court's online portal, and any reasonable self- represented litigant would check the website regularly. Padgett's opposition attached a statement (not under penalty of perjury) from Margaret Lois Ottesen that on June 10, 2021 she personally placed in a postal service mailbox an envelope addressed to Hubbard at 8757 Hazelnut Drive in Eastvale, California containing a copy of Padgett's request for entry of default, and on June 24, 2021 she similarly placed in a postal service mailbox a "manila folder" addressed to Hubbard at the 8757 Hazelnut address containing a copy of Padgett's application for a default judgment and supporting documents. Ottesen's son John Otteson signed a statement (also not under penalty of perjury) that he witnessed Otteson place the request for entry of default addressed to Hubbard in a postal service mailbox on June 10.The mailing address for Hubbard referenced in the Ottesons' statements is not the same as the one that appears on Hubbard's pleadings (with the street number partially transposed).
It is unclear whether Otteson and John were describing service of the request for entry of default (Otteson) or the entry of default (John).
On September 1, 2021 Padgett filed a supplemental opposition in which he argued that Hubbard's conduct constituted inexcusable neglect because he waited more than 300 days from the entry of default (on September 29, 2020) before filing his motion to vacate on July 23, 2021, and therefore, he should not be granted relief under section 473. At a hearing on the same date, the trial court denied Hubbard's motion to vacate the default and default judgment. The minute order stated the motion was denied "for failure to meet the burden to establish [Hubbard] did not receive notices to appear or the ability to determine the applicable court dates for which [he] failed to appear."
There was no court reporter at the hearing.
Hubbard timely appealed from the order denying the motion to vacate.
Hubbard appealed from only the September 1, 2021 order denying his motion to vacate, and not from the July 6, 2021 judgment. Because Hubbard did not appeal from the judgment, we consider Hubbard's contention the trial court erred in striking his answer at the September 25, 2020 hearing only to the extent it bears on the court's denial of Hubbard's motion to vacate.
DISCUSSION
A. The Trial Court Abused Its Discretion in Denying Hubbard's Motion To Vacate the Default Judgment Under Section 473, Subdivision (b), but the Motion Was Untimely as to Entry of the Default
1. Governing law and standard of review
Section 473, subdivision (b), provides in relevant part, "The court may, upon any terms as may be just, relieve a party . . . from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief . . . shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken." To qualify for discretionary relief under section 473, subdivision (b), "the party seeking relief must show (1) a proper ground for relief, and (2) 'the party has raised that ground in a procedurally proper manner, within any applicable time limits.'" (Henderson v. Pacific Gas &Electric Co. (2010) 187 Cal.App.4th 215, 229 (Henderson); accord, Huh v. Wang (2007) 158 Cal.App.4th 1406, 1419 (Huh).)
As the Court of Appeal in Henderson explained, "'"[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."'"'" (Henderson, supra, 187 Cal.App.4th at p. 230; accord, County of Los Angeles v. Financial Casualty &Surety Inc. (2015) 236 Cal.App.4th 37, 44 [bond surety demonstrated surprise and excusable neglect in failing to appear to argue its motion to vacate a bail bond forfeiture after a courtroom clerk misinformed its attorney on the morning of the hearing that the court had already granted the motion].) The trial court has discretion to grant relief under section 473, subdivision (b), "based on its evaluation of the nature of the mistake or error alleged and the justification proffered for the conduct that occurred." (Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 928 (Austin).)
"[R]elief is not warranted unless the moving party demonstrates diligence in seeking it." (Huh, supra, 158 Cal.App.4th at pp. 1420-1421 [affirming denial of discretionary relief under section 473, subdivision (b), where appellant waited more than three months after service of notice of entry of judgment to file his motion]; accord, Younessi v. Woolf (2016) 244 Cal.App.4th 1137, 1145 ["Given the absence of evidence explaining the seven-week delay in seeking to set aside the dismissal, the diligence requirement was not satisfied."].) Whether a party has acted diligently is a question of fact for the trial court to be decided based on the circumstances of the particular case. (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 33; Younessi, at p. 1145.)
"'A ruling on a motion for discretionary relief under section 473 shall not be disturbed on appeal absent a clear showing of [an] abuse'" of discretion. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257; accord, Austin, supra, 244 Cal.App.4th at p. 929.) Under this standard, "we may reverse only if we conclude the trial court's decision is '"so irrational or arbitrary that no reasonable person could agree with it."'" (Mechling v. Asbestos Defendants (2018) 29 Cal.App.5th 1241, 1249 [affirming grant of equitable relief from default judgment]; see Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773 [defining abuse of discretion standard in the context of admission of expert testimony].) "That a different decision could have been reached is not sufficient because we cannot substitute our discretion for that of the trial court. The trial court's ruling must be beyond the bounds of reason for us to reverse it." (Mechling, at p. 1249.)
However, there is a public policy favoring trial on the merits. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 978, 984 (Rappleyea) [trial court abused its discretion in denying equitable relief from default judgment where defendants' failure to pay entirety of filing fee for answer was based on incorrect information from clerk's office]; Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 694, 701-703 [trial court abused its discretion in denying motion under section 473, subdivision (b), for relief from default judgment entered after defendant's insurer failed to file answer].) Moreover, "[t]he general underlying purpose of section 473(b) is to promote the determination of actions on their merits." (Even Zohar Construction &Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839; accord, Austin, supra, 244 Cal.App.4th at p. 928.) "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, at p. 980; accord, McClain v. Kissler (2019) 39 Cal.App.5th 399, 413; Fasuyi, at p. 696 ["[T]he remedial relief offered by section 473 is 'highly favored and is liberally applied.'"].)
2. Hubbards motion to vacate the default was untimely
As discussed, to obtain relief under section 473, subdivision (b), a motion for relief from a default or default judgment must be made "within a reasonable time, not to exceed six months after the dismissal, judgment, order, or proceeding was taken." The default against Hubbard was entered on September 29, 2020, but Hubbard did not file his motion until July 23, 2021. Hubbard's motion, to the extent it seeks relief from the default, is untimely.
Hubbard argues he is nonetheless entitled to relief from the default because Padgett did not serve him with notice of the September 25 hearing on the OSC, which resulted in the trial court striking his answer and entering his default. Hubbard claims this lack of notice constitutes the kind of "surprise and excusable neglect" that warrants relief under section 473, subdivision (b), citing Credit Managers Assn. v. National Independent Business Alliance (1984) 162 Cal.App.3d 1166, 11721173. In that case, the Court of Appeal concluded the crosscomplainant was entitled to relief from the default and default judgment because it suffered "surprise" when it was notified of service of the cross-complaint and the resulting default after the default judgment was entered. (Ibid.) But the cross-complainant in Credit Manager filed a timely motion to set aside the default by filing the motion "[i]mmediately after notice" of entry of the default judgment, and there is no indication the motion was filed more than six months after the default was entered. (Id., at p. 1173.)
Here, according to the proof of service on the request for entry of default, the request was served on Hubbard at the address on his answer on September 29, 2020, yet Hubbard waited approximately 10 months after entry of the default to file his motion. Hubbard has not cited any authority for the proposition, nor is there any, that a defaulting party may seek relief under 473, subdivision (b), more than six months after the default, which is "the longest time allowable" under the statute. (Huh, supra, 158 Cal.App.4th at p. 1422.)
3. The trial court abused its discretion in denying Hubbard relief from the default judgment
Although relief from the default was not available to Hubbard under section 473, subdivision (b), due to his delay in filing the motion to vacate, we agree with Hubbard the trial court abused its discretion in denying his timely motion to vacate under subdivision (b) with respect to the default judgment (filed 17 days after entry of judgment) because the default judgment was entered against him by "mistake, inadvertence, surprise, or excusable neglect."
Hubbard presented undisputed evidence that Padgett did not provide him with notice that the trial court at the July 8, 2020 trial setting conference set a hearing on the OSC for September 25 regarding potential terminating sanctions against Hubbard, despite the court's order for Padgett to give notice. As a result, Hubbard was not present on September 25 when the court struck his answer, and Hubbard was never served with notice of entry of default. (As discussed, according to the Ottesons' unsworn statements regarding notice, the notice of entry of default was mailed on June 10, 2021 to the wrong address.) Rather, at most the only notice Hubbard received prior to the court's July 6, 2021 notice of entry of judgment was of Padgett's request for entry of default mailed on September 29, 2020. It is not reasonable to assume that notice of Padgett's request for entry of default would have alerted Hubbard to the fact a default was entered (with a judgment to follow), especially where Hubbard received no notice of the OSC contemplating a terminating sanction and no notice his answer had been stricken.
As discussed, the declaration of mailing on the request for entry of default stated the request was mailed to Hubbard on the same day it was filed with the court, and the default was entered by the clerk later that day. Hubbard avers he did not receive notice of the request for entry of default, but the trial court implicitly credited the declaration of mailing in holding Hubbard failed to meet his burden to show mistake, inadvertence, surprise, or excusable neglect.
We acknowledge a self-represented litigant's understanding of the rules of procedure is, as a practical matter, more limited than an experienced attorney's. Whenever possible, we do not strictly apply technical rules of procedure in a manner that deprives litigants of a hearing. However, we are required to apply the rules on appeal and substantive rules of law to a selfrepresented litigant's claims on appeal just as we would to those litigants who are represented by trained legal counsel. (Rappleyea, supra, 8 Cal.4th at pp. 984-985.) Although Hubbard's self-represented status does not excuse him from complying with the six-month deadline for filing a motion to vacate default, the fact he was self-represented would have made it even more unlikely he would have understood the need to take action in response to a request for entry of default where he did not receive notice of the actual entry of default.
Moreover, although Hubbard failed to appear at the July 8, 2020 trial setting conference, his absence should not have caused-and Hubbard could not have reasonably anticipated it would cause-his answer to be struck. To the contrary, section 572.2, subdivision (a), which permits the trial court to "strike out all or any part of any pleading" where a party or counsel fails to comply with any requirement of local court rules, provides that "no penalty may be imposed under this section without prior notice to, and an opportunity to be heard by, the party against whom the penalty is ought to be imposed." (See Lee v. An (2008) 168 Cal.App.4th 558, 565 (Lee) [trial court exceeded its authority by striking the defendant's answer as a terminating sanction for noncompliance with local rules without prior notice].) And Government Code section 68608, subdivision (b), limits the trial court's power to impose sanctions, providing that courts may not strike pleadings if "it appears that less severe sanctions would not be effective after considering the effect of previous sanctions or previous lack of compliance in the case." (See Tliche v. Van Quathem (1998) 66 Cal.App.4th 1054, 1061-1062 [trial court's terminating sanction order was "premature and unauthorized" under Government Code section 68608, subdivision (b), and Code of Civil Procedure section 575.2, subdivision (b), because the court failed to consider evidence of the ineffectiveness of prior sanctions].)
Under these circumstances, Hubbard demonstrated the default judgment against him was entered by "surprise," within the meaning of section 473, subdivision (b), because he was "'"unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against."'" (Henderson, supra, 187 Cal.App.4th at p. 230; accord, County of Los Angeles v. Financial Casualty &Surety Inc., supra, 236 Cal.App.4th at p. 44; Credit Managers Assn. v. National Independent Business Alliance, supra, 162 Cal.App.3d at p. 1173.) Accordingly, the trial court abused its discretion in denying his motion to vacate the default judgment.
Although Hubbard remains in default and is therefore barred from further participation in the proceedings on remand, some forms of effective relief remain available. For example, he retains the ability to move for a new trial based on errors in the law and the ability to appeal from the new judgment. (Siry Investment, L.P. v. Farkhondehpour (2022) 13 Cal.5th 333, 343.)
B. The Default Is Not Void
Hubbard contends for the first time on appeal that the default should have been vacated because it is void. Hubbard's argument fails because the order entering default is at most voidable, not void.
Hubbard did not argue below that the default and default judgment were void, nor did he seek relief under section 473, subdivision (d). However, because a void judgment or order is subject to collateral attack at any time, including for the first time on appeal, we decline to find forfeiture and consider the merits of his contention. (Falahati v. Kondo (2005) 127 Cal.App.4th 823, 831 & fn. 18 [trial court erred in denying defendant's motion to vacate a judgment that was void notwithstanding plaintiff's 10-month delay in bringing motion].) Because we grant relief as to the default judgment under section 473, subdivision (b), we only address whether the order entering the default was void.
Section 473, subdivision (d), provides that a court "may, on motion of either party after notice to the other party, set aside any void judgment or order." If a court "lack[s] fundamental authority over the subject matter, question presented, or party, . . . its judgment [is] void." (In re Marriage of Goddard (2004) 33 Cal.4th 49, 56; accord, First American Title Insurance Co. v. Banerjee (2022) 87 Cal.App.5th 37, 42 ["'A default judgment is void if the trial court lacked jurisdiction over the parties.'"].) Where a motion to vacate a default is made more than six months after entry of the order, the order may only be set aside if it is void on its face. (Kremerman v. White (2021) 71 Cal.App.5th 358, 369); Ramos v. Homeward Residential, Inc. (2014) 223 Cal.App.4th 1434, 1440; Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441.) We review de novo whether an order is void on its face under section 473, subdivision (d). (Kremerman v. White, supra, 71 Cal.App.5th at p. 369; Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1020; Ramos v. Homeward Residential, Inc., supra, 223 Cal.App.4th at p. 1440.)
Hubbard contends the proceedings that resulted in the default were void because he never received notice that the court was contemplating striking his answer, placing him in default. However, as the Court of Appeal explained in Lee, supra, 168 Cal.App.4th at page 566, a default and default judgment that follow imposition of a terminating sanction are not void for the purposes of vacatur under section 473, subdivision (d), if the defaulted party was properly served with the complaint and summons, even if the defaulted party had no advance notice of the potential terminating sanction.
The facts in Lee are similar to those here: a selfrepresented defendant failed to appear at multiple case management conferences and never received notice the court intended to consider imposing terminating sanctions at an upcoming conference because the plaintiff did not provide notice as ordered. (Lee, supra, 168 Cal.App.4th at p. 561.) The defendant failed to attend the conference, and the trial court struck her answer as a terminating sanction. (Id. at pp. 561562.) A copy of the request for entry of default was mailed to her, and a default and default judgment were entered. (Id. at p. 562.) Three years later the defendant moved to vacate the default and default judgment, arguing the default was invalid and the default judgment was void; the trial court denied her motion as untimely under section 473, subdivision (b). (Lee, at p. 563.) The Court of Appeal concluded the trial court "exceeded its authority'" in striking the defendant's answer without proper notice and an opportunity to be heard. (Id. at p. 565.) Nonetheless, the court affirmed the denial of relief, reasoning, "In this case, the [trial] court had fundamental jurisdiction over the parties and the subject matter, but acted in excess of its jurisdiction by imposing terminating sanctions without adequate prior notice. The resulting default and default judgment were thus voidable, not void." (Id. at p. 565; see id. at p. 563 ["'A trial court has no statutory power under section 473, subdivision (d) to set aside a judgment that is not void'"]; Johnson v. E-Z Ins. Brokerage, Inc. (2009) 175 Cal.App.4th 86, 98-99 (Johnson) ["[b]y awarding terminating sanctions on an ex parte basis, the trial court at most failed to follow proper procedure"; however, "the default and default judgment . . . were not void, but at most were voidable, because the trial court had fundamental jurisdiction over the parties and the subject matter"].)
In his reply brief, Hubbard cites Sole Energy Co. v. Hodges (2005) 128 Cal.App.4th 199, in which the Court of Appeal reversed the defaults and default judgments entered against the defendants based on an order imposing terminating sanctions for discovery abuses without sufficient notice to the defendants. The court concluded, "Discovery sanctions may not be ordered ex parte, and an order purporting to do so is void." (Id. at p. 208.) The court reasoned that because the order granting terminating sanctions was void, the orders entering the defendant's default and default judgment were void as well. (Id. at p. 210.) However, as the court in Lee recognized in declining to follow Sole, the Sole defendants timely moved to set aside the judgments under section 473, subdivision (b), and "no issue was raised in Sole about the timeliness of the motions for relief from the invalid orders." (Lee, supra, 168 Cal.App.4th at p. 566.) Accordingly, "[i]n using the term 'void,' the court in Sole did not have to distinguish void or voidable orders for the purpose of deciding whether relief could be sought after the six-month period in section 473, subdivision (b)." (Lee, at p. 566.)
Further, in Johnson, supra, 175 Cal.App.4th at page 99, the same court that decided Sole four years earlier (the Fourth District, Division Three) adopted the reasoning of Lee in affirming a default and default judgment taken by surprise: "[T]he defendants in Sole Energy moved to set aside the defaults and default judgments within 90 days of their entry" and "moved for relief under both subdivisions (b) and (d) of [section 473]. We therefore had no need to distinguish between void and voidable judgments to reach our decision." The court in Johnson concluded, "As the court that decided Sole Energy, we agree with Lee v. An's analysis of that case." (Johnson, at p. 99.)
As in Lee and Johnson, the trial court here had jurisdiction over the subject matter and the parties, who had been litigating the case for years, and relief under section 473, subdivision (b), was unavailable with respect to the default due to Hubbard's delay in moving to file his motion to vacate. The default against Hubbard may have been voidable because of the court's failure to follow the proper procedure in striking Hubbard's answer, but it was not void, and therefore not subject to vacatur under section 473, subdivision (d).
Hubbard appears also to contend the trial court should have granted his motion to vacate pursuant to its discretion to vacate a default and default judgment on equitable grounds based on extrinsic mistake. (Rappleyea, supra, 8 Cal.4th at p. 981; Lee, supra, 168 Cal.App.4th at p. 566 ["a trial court retains discretion to vacate a default on equitable grounds, even if statutory relief is unavailable"].) However, Hubbard did not in his motion to vacate request discretionary equitable relief based on extrinsic mistake, thereby forfeiting the argument on appeal. (See Quiles v. Parent (2018) 28 Cal.App.5th 1000, 1013 ["'Failure to raise specific challenges in the trial court forfeits the claim on appeal.'"].) Even if the issue were not forfeited, Hubbard has not shown extrinsic mistake. (See Rappleyea, at pp. 981-982 ["'To set aside a [default] judgment based upon extrinsic mistake one must satisfy three elements. First, the defaulted party must demonstrate that it has a meritorious case. Second[ ], the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Last[ ], the moving party must demonstrate diligence in seeking to set aside the default once . . . discovered.'"].) Hubbard failed to show diligence in seeking to set aside the default given his 10-month delay from service of the request for entry of default until he filed his motion to vacate. (See Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 503 [trial court abused its discretion in granting equitable relief from default where defendant failed to explain nine-month delay from the time of entry of judgment until filing motion for relief].) Nor did he make any showing he had a meritorious case.
DISPOSITION
The order denying Hubbard's motion to set aside default and default judgment is affirmed as to the default and reversed as to the default judgment. The matter is remanded for further proceedings consistent with this opinion. The parties are to bear their own costs.
WE CONCUR: PERLUSS, P. J., SEGAL, J.