Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. NC051500, Patrick T. Madden, Judge.
Herbert Hanson, in pro. per., for Defendant and Appellant.
Law Offices of Kersten & Associates, William C. Kersten and Brandon R. Creel for Plaintiff and Respondent.
EPSTEIN, P.J.
Defendant and appellant Herbert Hanson appeals from an order denying his motion to set aside a default judgment. We find no abuse of discretion and affirm the order.
FACTUAL AND PROCEDURAL SUMMARY
Plaintiff and respondent Monika Zuzanska brought this action against appellant, alleging he failed to repay $9,581.60 she had loaned him for a condominium investment, and $14,294.00 she had loaned him for improvements to his home. The complaint was filed on June 25, 2008, and served on appellant on August 13, 2008.
Appellant did not file an answer, and on September 16, 2008, respondent filed a request for entry of default. Default was entered as requested on that date.
On October 7, 2008, respondent filed her default prove-up package. In her declaration in support of the default judgment, respondent set out the factual basis for the requested damages. She attached documentary evidence to support her claim. Default judgment was entered against appellant on October 8, 2008, in the amount of $27,095.57.
On January 2, 2009, appellant moved to set aside the default and default judgment under Code of Civil Procedure section 473. In his supporting declaration, he asserted that upon receiving notice of the lawsuit, “I immediately took action by contacting Plaintiff’s attorney and leaving a message. I spoke several times in attempts to resolve dispute with Plaintiff’s attorney. When it appeared that Plaintiff’s attorney will not resolve matter, I requested time to respond to complaint.” Respondent “did not provide additional time to respond as promised....” According to appellant, the allegations in the complaint were being litigated in other actions with respondent in Los Angeles and Las Vegas. “Due to my involvement with other litigations relating to allegations in this complaint, my reliance on Plaintiff to extend time to respond, this Defendant failed to file answer within reasonable time based on my inadvertence, mistake or excusable neglect.” He asked that the default be set aside and the judgment vacated.
Attached to the motion to vacate was a letter from appellant to respondent’s counsel, showing a date of September 21, 2008. In the letter, appellant asserted he did not owe respondent any money because she had invested in the real estate purchase, and any other amount she claimed had been a gift. He proposed paying her a portion of the money sought to resolve the matter.
Respondent opposed the motion, and submitted the declaration of her attorney, Brandon Creel, in support. Mr. Creel stated he had received two telephone calls from appellant after the complaint was served and before default was entered. In each call, appellant threatened to take legal action against counsel and to have him disbarred if Mr. Creel did not immediately dismiss the complaint. Appellant did not dispute service, nor did he seek additional time to respond in either call. The day after appellant’s default was entered, appellant again called Mr. Creel, and repeated his threats of legal action and disbarment. Appellant did not dispute service nor seek additional time to respond in this call, either.
Mr. Creel stated he received a letter from appellant on October 7, 2008, the day before judgment was entered. In the letter, appellant disputed owing respondent money, and proposed partial payment to resolve the matter. Appellant did not dispute service in this letter, nor did he ask for additional time to respond. According to Mr. Creel, it is the same letter appellant attached to his motion to vacate, but it was not received in his office until October 7. That same day, counsel sent appellant a letter on behalf of his client, rejecting appellant’s offer of settlement.
Mr. Creel disputed appellant’s claim that there had been a purported agreement to provide additional time to respond. According to the attorney, no additional time was requested by appellant, “and it follows that no additional time was promised by my office.”
The court found no credible evidence to support appellant’s request to set aside the default, and denied the motion. This is a timely appeal from that order.
DISCUSSION
Under Code of Civil Procedure section 473, subdivision (b), “[t]he 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.” Appellant argues that he “was laboring under a mistake of fact, i.e. that he could resolve this matter with plaintiff’s counsel rather than file a formal answer.” He claims his “misunderstanding as to the need for filing an answer was reasonable, given several telephone calls with the plaintiff’s attorney and the fact that attorney Creel did not once remind him of the need to file that answer or face a default.”
The summons itself warns a defendant that a written response must be filed at the court within 30 calendar days or a default may be taken. The summons also warns that “A letter or phone call will not protect you.” Appellant made telephone calls to counsel, and he sent a letter, but appellant acknowledges that counsel had no legal obligation to warn him that he had to file an answer. (See Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 701; Bellm v. Bellia (1984) 150 Cal.App.3d 1036, 1038.)
The court apparently did not credit appellant’s claim that respondent’s counsel had promised him additional time to answer. That claim was strongly refuted by the detailed declaration of respondent’s counsel. According to attorney Creel, appellant called him twice before the time to respond expired. In both calls, appellant demanded the action be dismissed and threatened counsel with lawsuits and disbarment if the action were not withdrawn. In the third call, made after default was entered, appellant persisted in his threats of legal action and disbarment. Appellant did not dispute service of process in any of these calls, he did not ask for additional time to respond to the complaint, and no extension of time to respond was promised.
Appellant’s letter to respondent’s counsel, sent after default was entered, was before the court. It made no reference to a previous promise of an extension of time to respond, nor did it seek an extension. The settlement offer it contained was immediately rejected by respondent, thus refuting any claim that ongoing settlement negotiations lulled appellant into believing he had additional time to answer.
Appellant failed to show his default was caused by surprise, mistake, or excusable neglect. On this record, we find no abuse of discretion in the trial court’s denial of appellant’s motion to set aside default.
DISPOSITION
The order is affirmed. Respondent is to have her costs on appeal.
We concur: WILLHITE, J.SUZUKAWA, J.