Opinion
NOT TO BE PUBLISHED
APPEAL from orders and a judgment of the Superior Court of Los Angeles County, Joseph E. DiLoreta and Patrick T. Madden, Judges, Los Angeles County Super. Ct. No. NC036591
The Younger Law Firm and Robert J. Younger for Defendant and Appellant.
Law Offices of Jeffrey W. Doeringer and Jeffrey W. Doeringer for Plaintiff and Respondent.
VOGEL, J.
This is an appeal from a default judgment and underlying orders. We affirm.
FACTS
Dawn Kinney (represented by Teresa A. Danton) and Gary Kinney (represented by Michael Brady) were involved in marital dissolution proceedings during February 2005. On February 2, Dawn’s father (Robert Trent), represented by Danton, sued Gary for breach of an oral contract, alleging that in May 2003, Gary had agreed to pay Trent $14,850 as the amount owed for unpaid rent for the Long Beach residence where Gary and Dawn had lived since June 1993.
They were all in court on February 2 for a mandatory settlement conference in the marital dissolution action -- Dawn and Danton, Gary and Brady, and Trent. Danton went to the clerk’s office, filed Trent’s complaint, then walked down the hall to the others and personally served the summons and complaint on Gary in the presence of his family law lawyer. Danton filed a proof of personal service on February 8.
On March 10, Trent filed a request for entry of Gary’s default, and default was entered that day. A copy of the request for entry of default had been served on Gary by mail on March 7. Gary admits receipt of the request but claims it “was left blank as to the nature of the remedies sought.” In June, Trent filed and served on Gary a case management statement showing that a case management conference was set for July 5, that Gary’s default had been entered on March 10, and that a default hearing would be scheduled for August. Gary admits receipt of the case management statement.
Gary appeared at the July 5 conference and informed the court he had not been properly served with Trent’s complaint.
On July 18, Gary (represented by Robert Younger) filed a motion to vacate his default. In a supporting declaration, Gary said he “ha[d] no recollection of being served with the complaint on February 2 . . . .” He also presented copies of two letters showing that, on July 6 and 8, Younger had asked Danton to stipulate to an order vacating Gary’s default but Danton had refused. To show that he had a viable defense to Trent’s complaint, Gary presented declarations from several people who said they had heard Trent say that Gary and Dawn could live in the Long Beach residence “rent-free.”
Trent opposed the motion, and in a supporting declaration Danton described in detail the manner in which she had filed and personally served Trent’s complaint on Gary in Brady’s presence. Danton’s declaration included Brady’s telephone number for use by anyone who wanted to “confirm or deny” her description of the February 2 events.
On July 28, Trent replaced Danton with a new lawyer, Gary Bruce Eaton, and Eaton filed further papers in opposition to Gary’s motion. A supplemental declaration from Danton again described her service of the complaint on Gary, and a supporting memorandum argued that Gary’s moving papers were in any event inadequate because he did not explain his lack of recollection or his failure to answer. Gary filed a reply but added no new facts.
On August 4, the trial court denied Gary’s motion, finding that he had failed “to provide sufficient evidence in support of the motion.”
On August 11, Gary filed a motion for reconsideration that did not offer any comment about the evidence establishing service but simply argued, again, that he had a viable defense to Trent’s complaint and that public policy favors trials on the merits. Trent opposed the reconsideration motion, pointing to the absence of any new evidence and disputing the merits of Gary’s defense. The trial court denied the reconsideration motion.
At the conclusion of a default hearing held in March 2006, the trial court awarded $36,300 to Trent. Gary’s appeal is from the default judgment thereafter entered (and the underlying orders).
DISCUSSION
In a series of related arguments, Gary contends he acted diligently in seeking relief from the default and that a strong public policy favors trials on the merits -- a policy, he claims, that should be implemented by considering more than the mere fact that he was served. The problem with all of these arguments is that Gary never made a factual showing of diligence, mistake, or excusable neglect. For this reason, there is no basis for us to conclude that the trial court abused its discretion. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 232-234.)
The complaint was personally served on February 2. The request for entry of default was served on March 7. The case management statement was served on June 13 and filed on June 14. Gary first appeared on July 5, and his motion to vacate the default was filed on July 18. His supporting declarations admit knowledge of the complaint (although he insists he has no recollection of service), and admit receipt of the request for entry of default and the case management statement and claim, in one conclusory sentence, that “[t]he entry of default was taken by surprise and excusable negligent [sic] in that the civil complaint was allegedly served on February 2, 2005, during a family law matter between [Gary and Dawn].” The exhibits to the motion -- the two July letters from Gary’s lawyer to Trent’s lawyer asking Danton to stipulate to an order vacating the default -- do not offer any reason for Gary’s failure to act earlier. (Uva v. Evans (1978) 83 Cal.App.3d 356, 362 [“diligence” is an essential ingredient of a motion for relief from default]; Billings v. Health Plan of America (1990) 225 Cal.App.3d 250, 255 [the reasons for the party’s neglect or mistake must be considered].)
Gary says he has “no recollection of being served with the complaint on February 2, ” but he does not say what might have happened to the document itself. He says he “became aware of this action” when he received the request to enter default and the case management statement, but he does not explain the four-month delay between the March 10 request to enter default and his July 18 motion for relief. There was no showing of diligence or excusable neglect. (Code Civ. Proc., § 473; Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 895 [inexcusable neglect prevents relief]; Luz v. Lopes (1960) 55 Cal.2d 54, 62 [the burden of proof to establish diligence is on the party seeking relief]; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) Absent any evidence of diligence and mistake or excusable neglect, the public policy issues are irrelevant. (Solv-All v. Superior Court (2005) 131 Cal.App.4th 1003, 1007; Scognamillo v. Herrick (2003) 106 Cal.App.4th 1139, 1148.)
Although Gary states in his declaration that he appeared at the February 2 family law matter in propria persona, Danton’s declaration states that Gary’s lawyer (Brady) was present for the mandatory settlement conference held that day, and that Brady did not withdraw as Gary’s lawyer until March 24. The trial court’s rulings in this case necessarily include implied findings that Danton’s version is correct, and that credibility call is binding on this appeal. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925-926.)
The “new evidence” supposedly added by Gary’s motion for reconsideration addressed the merits of Trent’s complaint, not the reasons for Gary’s failure to respond to that complaint or the reasons for his delay in seeking relief from default.
Contrary to Gary’s assertion, this is not a case of “slight evidence” or a “weak showing” of excusable neglect and diligence (Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 740; Elston v. City of Turlock, supra, 38 Cal.3d at p. 233); it is a case of no such showing at all. What happened to the rest of March? April? May? June? What happened to the documents themselves, the summons and complaint served on February 2? What is it that finally triggered Gary’s decision to retain counsel? There was no factual basis for the relief Gary sought. (Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1181 [however strong the preference for trial on the merits, there are limits to that preference and bounds to the trial court’s discretion].)
The trial court did not abuse its discretion in denying Gary’s motion to vacate the default. (Northridge Financial Corp. v. Hamblin (1975) 48 Cal.App.3d 819, 824 [the trial court does not have the legal power to set aside a default simply because the defendant did not realize the legal effect of his failure to respond].)
We summarily reject Gary’s contention that Danton had an ethical duty to warn Gary’s “attorney of record” that default was about to be entered. Leaving to one side the merits of such a proposed rule, Gary had no attorney of record in this case until July, four months after the request for entry of default was served and filed.
DISPOSITION
The orders and judgment are affirmed. Trent is entitled to his costs of appeal.
We concur:
MALLANO, Acting P.J., JACKSON, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.