Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. C0700239
Siggins, J.
Bobby Lee appeals from a default judgment in favor of the Redevelopment Agency of Contra Costa County (the Agency). Lee contends the trial court abused its discretion when it denied him relief from the entry of default. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
According to the allegations of the complaint, Judy McCormies bought a home through the Agency’s first-time homebuyers’ program in 2001. As a condition of McCormies’s participation in the first-time homebuyers’ program, she provided the Agency an option to purchase the home in the event that a secured creditor threatened foreclosure. Bobby Lee made a loan to McCormies in 2005, and as security for the loan took a deed of trust against the home.
Lee’s declaration states that he is the president of First Federal Mortgage Bankers, Inc., which is also listed as an appellant in this case.
After a lender filed a notice of default against McCormies’s home, the Agency attempted to exercise its option, but McCormies refused to convey her home to the Agency. In order to enforce its rights, the Agency sued McCormies and joined as defendants Lee and others who claimed an interest in the home. The Agency sought specific performance of its option to purchase and an order cancelling Lee’s deed of trust.
The Agency personally served Lee with a summons and complaint in March 2007. When Lee did not timely respond to the complaint, the Agency requested and obtained entry of his default in April 2007. In October 2007, Lee received notice of the Agency’s intent to obtain a default judgment against him. On November 20, 2007, Lee’s counsel filed a motion to set aside the default previously obtained by the Agency. Lee’s motion was supported by his declaration that he “believe[d the papers served on him] were accidentally filed with papers for another lawsuit that were set aside to give to a lawyer representing [him] in another action.”
Lee also sought to set aside a default entered against him in June 2007 on a cross-complaint filed by Joel and Maria Haro, who were named as additional defendants in the Agency’s complaint.
The Agency opposed Lee’s motion and argued that Lee had “elected to watch and wait rather than to act diligently to preserve his right to defend or to cross-complain.” The Agency contended Lee’s motion was untimely under Code of Civil Procedure section 473 because it was not filed within six months of the entry of his default by the Agency. The Agency also argued that Lee did not demonstrate that the court should exercise its equitable discretion to set aside the default because he “offer[ed] no excuse for failing to answer; he exercised no diligence in seeking to have his default set aside after learning that it had been entered; and his proposed defense lack[ed] any merit.”
Code of Civil Procedure 473, subdivision (b), authorizes the court to “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,” and requires that an application for such relief be made “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” All further statutory references are to the Code of Civil Procedure.
The court denied Lee’s motion to set aside the default and stated: “The court has had experience with Mr. Lee in the case. In taking the whole picture as a whole, all of the things that have happened in the case . . . I choose not to believe Mr. Lee, and on that basis I find that he is not one that comes within the realm of excusable neglect.” The court entered an order granting default judgment against Lee, who timely appealed.
DISCUSSION
Lee argues the court could have entertained his motion for relief beyond the six-month period prescribed by section 473, and abused its discretion when it denied his motion because he had a satisfactory excuse for his failure to timely respond to the complaint. Moreover, he says that he had a meritorious defense to the action and diligently sought relief when he realized the consequence of his default. We disagree and find the cases Lee relies on to be distinguishable.
In Rappleyea v. Campbell (1994) 8 Cal.4th 975, a court clerk specified an incorrect filing fee to out-of-state defendants for their answer, and a default judgment was entered against them in excess of $200,000. (Id. at p. 978.) The plaintiff’s lawyer also misled the defendants about their right to seek relief pursuant to section 473. In these unusual circumstances, it was determined that the court should have heard defendants’ motion to set aside the default that was filed more than six months after their default was entered. (Id. at pp. 979-980.) Our Supreme Court concluded that the trial court abused its discretion by denying defendants’ motion to set aside the clerk’s entry of default. (Id. at pp. 978, 982.) The court considered defendants’ excuse for failing to timely answer, the plaintiff’s incorrect advice to defendants regarding their ability to seek relief, and the plaintiff’s failure to diligently prove up damages to “greatly weaken any possible assertion of prejudice, and correspondingly lower the burden on defendants of showing diligence.” (Id. at p. 984.) The court characterized its holding in Rappleyea: “We draw our conclusion narrowly. The clerk’s error and plaintiff’s incorrect statement of the law together persuade us that the court abused its discretion when it denied defendants’ motion. These rare events should not combine to make defendants suffer a $200,240.39 judgment without a hearing on the merits.” (Ibid.)
Justice Baxter’s dissent, joined by Chief Justice Lucas and Justice Werdegar, took issue with what it viewed as the majority’s improper substitution of its judgment of the evidence for that of the trial court, and described the decision as “aberrational.” (Rappleyea v. Campbell, supra, 8 Cal.4th at pp. 986-987.)
This case is very different. Lee’s excuse for his failure to timely respond to the complaint was simply that he “believe[d]” he “accidentally” put the papers in the wrong place. Lee’s explanation in no way resembles the erroneous information provided to the defendants by a court clerk and opposing counsel that was considered satisfactory in Rappleyea. (See Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 506 [trial court abused its discretion when it set aside default where defendant apparently mislaid documents within its corporate offices; “improper handling of the matter within [defendant’s] office . . . does not constitute a satisfactory excuse for failing to defend”]; Price v. Hibbs (1964) 225 Cal.App.2d 209, 217 [“[t]he mislaying of process [and] forgetfulness . . . do not require a court to set aside a default”]; Yarbrough v. Yarbrough (1956) 144 Cal.App.2d 610, 613-615 [trial court abused its discretion when it set aside default where defendant’s only explanation was that he “mislaid” the summons and complaint]; cf. Bernards v. Grey (1950) 97 Cal.App.2d 679, 682, 686 [trial court did not abuse its discretion by granting promptly-filed motion to vacate default when defendant received summons and complaint while engaged in conversation, placed them in his briefcase, and “ ‘through inadvertence, did not call to counsel’s attention the papers he had received and was not at said time aware of their nature’ ”].)
Lee also argues that he tried diligently to set aside the default once he understood its legal effect, and was confused because after his default was entered he was served with documents and attended several settlement conferences by phone. As Lee acknowledges, the trial court informed him that he “could listen to the conference[s] but not participate because he was in default.” The court also made an explicit finding at the hearing on his motion to set aside the default that Lee was not credible. The court concluded, based on its experience with “all of the things that have happened in the case[,] . . . I choose not to believe Mr. Lee, and on that basis I find that he is not one that comes within the realm of excusable neglect.”
The fact that Lee moved to be relieved of his default before the Agency obtained a judgment may minimize any prejudice to the Agency, but Lee cites no authority that the absence of a judgment excused altogether his obligation to diligently seek to set aside the clerk’s entry of default. (Cf. Rappleyea v. Campbell, supra, 8 Cal.4th at p. 984 [under “unusual facts [which] greatly weaken[ed] any possible assertion of prejudice,” “defendants were not callously derelict in seeking to set aside the default”]. Lee has not shown that he satisfied the “stringent test” he must meet to obtain equitable relief from default. (Cf. Rappleyea, supra, at p. 984; see also Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 529 [“[c]ourts do not relieve litigants from the effects of mere carelessness”].)
We have concluded above that Lee failed to show a satisfactory excuse for failure to timely respond to the complaint and diligence in pursuing relief from default. He thus could not satisfy two of the three prongs of the test for equitable relief. We therefore will not address whether he could satisfy the third prong of the test by demonstrating a meritorious defense to the complaint. (See Rappleyea v. Campbell, supra, 8 Cal.4th at pp. 982-983; Cruz v. Fagor America, Inc., supra, 146 Cal.App.4th at p. 503.)
To the extent that Lee argues the trial court was unaware of its authority to grant equitable relief beyond the six-month statutory deadline, he has not shown he was prejudiced by the denial in view of the trial court’s finding that he lacked credibility and failed to show excusable neglect. (See Weitz v. Yankosky (1966) 63 Cal.2d 849, 857 [“To the extent that the court’s equity power to grant relief differs from its power under section 473, the equity power must be considered narrower, not wider”]; Aheroni v. Maxwell (1988) 205 Cal.App.3d 284, 291 [“A party who seeks to have his default vacated under the court’s equity power must make a stronger showing than is necessary to obtain relief under section 473”]; see also Cruz v. Fagor America, Inc., supra, 146 Cal.App.4th at p. 503 [“the ground for [equitable] relief is not so much the fraud or other misconduct of one of the parties as it is the excusable neglect of the defaulting party to appear and present his claim or defense”].)
DISPOSITION
The judgment is affirmed.
We concur: McGuiness, P.J., Pollak, J.