Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, No. FAMRS903216 Michael J. Torchia, Temporary Judge (pursuant to Cal. Const., art. VI, § 21); Michael A. Knish, Judge.
Judge Torchia denied the motion to set aside the default. Judge Knish presided over the prove-up hearing and entered the default judgment.
Haslam Perri & Thorne, Donald G. Haslam, and Brandon Miller for Appellant.
James W. Wiley and Marie Moreno Myers for Respondent.
OPINION
RICHLI, Acting P. J.
In this divorce proceeding, wife Monique Quezada took the default of husband Frank A. Gomez, Jr. The parties spent nearly two years litigating various pendente lite matters before Frank filed a motion for mandatory relief from the default based on his attorney’s affidavit of fault. The trial court denied the motion. After holding a prove-up hearing, the trial court entered a default judgment which, among other things, ordered Frank to pay Monique $60,000 as reimbursement for separate property contributions to the purchase of their home and $51,200 as the reasonable rental value of their home.
Frank appeals. He contends:
1. The motion to set aside the default should have been granted.
2. The award of $60,000 for reimbursement and the award of $51,200 for reasonable rental value are void because they exceeded the relief sought in the petition.
3. The award of $60,000 for reimbursement was erroneous because there was no equity in the home.
4. The default judgment should be set aside because Monique failed to file her final declaration of disclosure.
We agree that the motion to set aside the default should have been granted. Thus, we will reverse and remand for further proceedings. We need not reach Frank’s other contentions.
I
FACTUAL AND PROCEDURAL BACKGROUND
The parties were married in 2001. They have one minor child. In October 2009, they separated, and Monique filed a dissolution petition.
The summons and petition were served on Frank by personal delivery. In November 2009, after Frank failed to file a timely response, his default was entered. Nevertheless, the parties proceeded to litigate various pendente lite issues, including temporary spousal support, child support, and child custody and visitation. (See In re Marriage of Askmo (2000) 85 Cal.App.4th 1032, 1038-1040 [trial court can enter pendente lite spousal support and attorney fee orders, despite one spouse’s default].) They appeared at mandatory settlement conferences; at one point, a trial was set (though it was later vacated).
In October 2011, Frank filed a motion seeking mandatory relief from the default based on attorney fault. (Code Civ. Proc., § 473, subd. (b).) It included a proposed response to the petition. The motion was supported by a declaration by Frank’s attorney, John J. Guzman. According to Guzman, he had attempted to file a response to the petition, but it was rejected because the default had already been entered. In December 2009, Monique’s then-attorney had agreed to set aside the default, but Monique later changed attorneys. Meanwhile, due to Guzman’s mistake or inadvertence, “part[ly]... stem[ming] from the hope that this matter would settle, ” he failed to move promptly to have the default set aside.
Frank has different counsel on appeal.
Monique filed an opposition to the motion to set aside the default; her only argument was that the motion was untimely. In January 2012, the trial court denied the motion to set aside the default.
In February 2013, the trial court held a default prove-up hearing. In March 2013, it entered a default judgment dissolving the marriage, awarding child support, adjudicating child custody and visitation, making a division of property, and awarding attorney fees. Among other things, it ordered Frank to pay Monique $51,200 as reasonable rental value of the parties’ home and $60,000 as reimbursement of Monique’s separate property contributions to the purchase of the home.
In May 2013, Frank filed a notice of appeal from the default judgment.
In April 2013, Frank had filed a motion to set aside both the default and the default judgment. However, that motion was not heard until after Frank had already filed his notice of appeal, and when it was finally heard, the trial court declined to rule because the appeal was pending.
II
THE DENIAL OF THE MOTION TO SET ASIDE THE DEFAULT
Frank contends that the trial court erred by denying his October 2011 motion to set aside the default.
Code of Civil Procedure section 473, subdivision (b), as relevant here, provides: “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. 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.... 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.)
Monique argues that the motion was untimely because it was not filed within six months after the entry of the default. This argument is not well-taken. Under the plain language of Code of Civil Procedure section 473, subdivision (b), a motion to set aside seeking mandatory relief based on an attorney’s affidavit of fault need only be filed within six months after entry of the judgment, not entry of the default. (Sugasawara v. Newland (1994) 27 Cal.App.4th 294, 297.)
Monique also argues that the motion was untimely due to unreasonable delay and lack of diligence. She cites Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1180-1181, which involved the discretionary relief provision of Code of Civil Procedure section 473, subdivision (b). However, “other than the six months’ limit, there is no requirement of diligence under the mandatory provision of [Code of Civil Procedure] section 473(b). [Citations.]” (Prieto v. Loyola Marymount University (2005) 132 Cal.App.4th 290, 294, fn. 3, italics added.)
Similarly, Monique quotes In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, to the effect that “‘[r]elief is denied... if a party has been given notice of an action and has not been prevented from participating therein. He has had an opportunity to present his case to the court and to protect himself from mistake or from any fraud attempted by his adversary. [Citations.]....’ [Citation.]” (Id. at p. 1065.) Stevenot was talking about a motion to set aside a judgment based on extrinsic fraud. (Id. at pp. 1057-1059.) The quoted language has absolutely no relevance to a motion to set aside a judgment based on attorney fault.
Next, Monique argues that the trial court properly denied the motion because Guzman’s declaration failed to show mistake, inadvertence, surprise, or neglect. However, there seems to be some confusion — on both sides — about exactly what had to be due to mistake, inadvertence, surprise, or neglect.
In his declaration, Guzman explained in some detail why he waited nearly two years to move to set aside the default Why he failed to move to set aside the default immediately, however, was irrelevant. As already discussed, mandatory relief based on attorney fault does not require any showing of due diligence. Thus, Guzman did not have to show any cause for this delay at all — much less that this delay was caused by his mistake, inadvertence, surprise, or neglect.
What Guzman did have to show was that the default itself was the result of his mistake, inadvertence, surprise, or neglect. And he explained this, too, in his declaration: He was retained to respond to the petition. He prepared a response, and he attempted to file it, but the default had already been entered, so it was rejected. At that point, he had not received a copy of the default.
The request for entry of default was mailed to Frank, as required (Fam. Code, § 2335.5), but not to Guzman.
This testimony established that the default was the result of Guzman’s neglect. Arguably, his failure to file a response within 30 days (see Fam. Code, § 2020) was inexcusable neglect. However, “[Code of Civil Procedure s]ection 473’s provision for mandatory relief from a dismissal based upon a declaration of attorney error does not require a determination the error was excusable. It applies even when the attorney has no excuse. ‘“Relief is mandatory when a complying affidavit is filed, even if the attorney’s neglect was inexcusable.”’ [Citation.]” (Abers v. Rohrs (2013) 217 Cal.App.4th 1199, 1210.)
A response can still be filed after the 30 days have run, as long as a default has not yet been entered. (See Jackson v. Doe (2011) 192 Cal.App.4th 742, 749-750.) Guzman testified that he did not receive a copy of the request for entry of default. There is no evidence that he had actual knowledge that a default had been entered until he attempted to file the response; after that, it was too late. In any event, even assuming that he knowingly waited until a default had been entered before filing a response, this court has held that even intentional conduct by an attorney can constitute “neglect” within the meaning of the mandatory relief provision of Code of Civil Procedure section 473, subdivision (b). (Solv-All v. Superior Court (2005) 131 Cal.App.4th 1003, 1009-1010 [Fourth Dist., Div. Two].)
We may assume, without deciding, that a trial court may deny relief if it finds that the default was the result of the attorney’s “intentional strategic decision.” (Jerry’s Shell v. Equilon Enterprises, LLC (2005) 134 Cal.App.4th 1058, 1073; but cf. Solv-All v. Superior Court, supra, 131 Cal.App.4th at pp. 1011-1012 & 1012, fn. 10 [Fourth Dist., Div. Two].) Even if so, however, failure to respond to a complaint is seldom, if ever, strategic. “‘On the face of it, allowing a default to be taken against defendants is not a rational device by which to hinder and delay the plaintiff.’ [Citation.]” (Solv-All v. Superior Court, supra, 131 Cal.App.4th at p. 1009, fn. 6.)
Here, it seems unlikely that the trial court found that Guzman’s failure to file a response was not due to mistake, inadvertence, surprise, or neglect. After all, in the trial court, Monique was not even so much as arguing that there was insufficient evidence of mistake, inadvertence, surprise, or neglect; she merely argued that the motion was untimely. If the trial court did make such a finding, however, it abused its discretion. The uncontradicted evidence established neglect as a matter of law.
Finally, Monique argues that Frank forfeited any review by failing to file a notice of appeal from the order denying the motion to set aside. This argument is frivolous. “[A]n order denying a motion to set aside a clerk’s entry of default is nonappealable. [Citation.]” (City of Riverside v. Horspool (2014) 223 Cal.App.4th 670, 679 [Fourth Dist., Div. Two].) However, it can be reviewed in an appeal from the eventual default judgment (Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1136; see Code Civ. Proc., § 906), as here.
We therefore conclude that the trial court erred by denying Frank’s motion to set aside the default.
III
DISPOSITION
The default judgment is reversed. The order denying the motion to set aside the default is also reversed; the trial court is directed to enter an order granting the motion to set aside the default.
In principle, Monique is entitled to an order directing Guzman to pay her reasonable compensatory attorney fees and costs. (Code Civ. Proc., § 473, subd. (b).) In her opposition to the motion to set aside, however, she did not request any fees and costs, and she did not submit any evidence of what amount of fees and costs, if any, would be reasonable. As we are holding that the trial court should have granted the motion at that time, and as there was no basis at that time for awarding Monique any fees or costs, we see no reason why she should be able to recover fees and costs now.
Frank is awarded costs on appeal against Monique.
We concur: KING J., MILLER J.
Frank suggests that the trial court erred by failing to grant this motion. In response, Monique argues vigorously that the motion lacked merit.
We have no jurisdiction to review the trial court’s ruling on this motion because it was rendered after Frank filed his notice of appeal. (See Cal. Rules of Court, rule 8.104(d).) “[M]atters that occurred after rendition of an appealed judgment usually will be disregarded on the appeal; i.e., parties cannot challenge an appealed judgment based on postjudgment occurrences. [Citations.]” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2014) ¶ 8.176.)