Metropolitan News-Enterprise

 

Friday, March 12, 2021

 

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Court of Appeal:

Four Months Was Too Long in Seeking Relief From Default

 

By a MetNews Staff Writer

 

The Court of Appeal for this district has affirmed a default judgment for nearly $60,000 against a man in connection with an automobile accident, holding that a judge did not err in finding that a four-month delay between the time the defendant’s lawyer requested that the plaintiff stipulate to the default being set aside and a motion being made for relief was excessive.

The opinion underscores that while the maximum time for seeking relief from default under two statutes may not have been exceeded, the requirement of reasonableness of a delay in bringing a motion can justify a denial based on an unexplained lag.

Authoring the opinion, filed Wednesday and not certified for publication, was Presiding Justice Laurence D. Rubin of Div. Five. It upholds a judgment by Los Angeles Superior Court Judge Yolanda Orozco.

Mishap in Burbank

The lawsuit stemmed from defendant Demian Kolus Ardin having rear-ended the vehicle being driven by plaintiff Amanda Bonura on Jan. 25, 2016 near the intersection of Hollywood Way and Pacific Avenue in Burbank. Bonura brought suit for personal injuries on Dec. 4, 2017.

Efforts to effect personal service on Ardin were unsuccessful. On Dec. 18, 2017, a registered process server handed the summons, complaint, and statement of damages to a man found at Ardin’s North Hollywood residence, terming him in his declaration a “John Doe” and “co-habitant” of the premises, and describing him as being in his 50s, 5-foot eight-inches tall, weighing 150 lbs., a Caucasian or mid-Easterner, with short dark-brown hair.

The documents were then sent by mail to the residence, according to the opinion, though Ardin’s lawyers have disputed that.

No responsive pleading having been filed, Bonura’s lawyer on Feb. 2, 2018, secured an entry of default.

Actual Knowledge Gained

Ardin’s insurance company on March 23, 2018, told the defendant, in an email, of the entry of default; the insured responded in an April 13 email that he would cooperate.

The insurer retained the Long Beach law firm of Ford, Walker, Haggerty & Behar to represent Ardin. Tristin Orozco of that firm on April 8, 2018, wrote to Bonura’s Tarzana attorney, Barak Isaacs, seeking an agreement that the default be vacated; Isaacs declined in a telephone conversation on April 9; in an email the next day, he said:

“We are not willing to stipulate to set aside the default and default judgment. Your client/insured was properly served.”

A default judgment was sought, with a copy of the request mailed to Ardin at his residence. Orozco on Aug. 3, 2018, granted judgment in the amount of $59,900.41.

Then, on Aug. 20, 2018, a motion was filed under Code of Civil Procedure §473.5(a), which authorizes relief where there had not been “actual notice to a party in time to defend the action and a default or default judgment has been entered against him” and under Code of Civil Procedure §473(b), seeking relief from a default based on “surprise” and/or “inadvertence.”

Both sections require that a motion for relief be filed within “within a reasonable time” with §473.5(a) setting the outermost limit at two years from the complained of action, and §473(b) barring motions after six months.

Ardin’s Declaration

Ardin’s motion was accompanied by a July 28, 2008 declaration by the defendant in which he asserted:

“On July 12, 2018, I spoke with my attorney Kristine M. Gamboa, and was surprised to discover that Ms. Bonura had filed a default against me with regard to the Complaint….”

Although Ardin only said in his declaration that he did not learn of the entry of default until July 12, 2018—itself contradicted by evidence as to the exchange of emails between him and his insurer—his lawyers represented in the motion, citing the declaration, that he did not even know of the existence of the lawsuit against him until that time, saying:

“Mr. Ardin only learned of the instant lawsuit when he spoke with his attorney, Kristine Gamboa, on July 12, 2018….This Motion was filed within a reasonable period of time thereafter.”

Ardin also said in his declaration that the description of the “John Doe” who was served does not fit him nor does it fit his father or a house guest, either of whom might have been present.

Orozco’s Ruling

On Nov. 8, 2018, Orozco denied the motion. She explained in her order:

“Neither Defendant nor defense counsel explains why, having knowledge of the entry of default and having been informed in April 2018 that Plaintiff would not stipulate to set aside default, they waited until after default judgment was entered on August 3, 2018 to file this Motion which wasn’t filed until August 20th.”

“Therefore, while technically timely, the Court finds this Motion was not filed within a reasonable time.”

She added:

“Defendant’s statement that he was not aware of the default until July 2018 is not credible.”

Rubin’s Opinion

Ardin argued on appeal that Orozco erred because, under §473.5(a) he was entitled to take two years to file his motion. Rubin dismissed the contention, saying:

“The two-year requirement in section 473.5 and the six-month requirement in section 473 are distinct from the defendant’s obligation to file its motion within a reasonable time.”

The defendant also maintained that Orozco improperly imputed his lawyers’ knowledges to him. That “mischaracterizes” Orozco’s ruling, Rubin said, pointing out that “the court found that defendant himself knew of the lawsuit and default as early as April 2018, but simply did not act in a timely fashion to address it, and instead waited more than four months.”

He set forth in a footnote:

“The court’s finding that defendant was not credible when defendant said he did not learn of the default until July 2018 is consistent with the implied finding that defendant and his attorney discussed the default on or about April 9, 2018, the date plaintiff’s attorney told defendant’s attorney that plaintiff would not stipulate to set aside the default.”

Rubin went on to say:

“By brief comparison to other appellate decisions, we conclude the court did not abuse its discretion in finding defendant’s unexplained four-month delay was unreasonable. A two-and-a-half month delay was found unreasonable where ‘[n]o attempt to explain or excuse the failure to file the demurrer with the clerk within the time required was made’ and ‘nowhere in the record...is there any showing whatever to excuse the failure of defendant to timely file his motion for relief.’…Unexplained delays of three and nearly six months have also been found unreasonable.”

High Court Decision

The case Rubin cited involving a three-month delay was handed down by the California Supreme Court on March 9, 1948. It said in Benjamin v. Dalmo Manufacturing Co.:

“Courts do not relieve litigants from the effects of mere carelessness. Defendant has not cited, nor has independent research disclosed, any case in which a court has set aside a default where, in making application therefor, there has been an unexplained delay of anything approaching three months after full knowledge of the entry of the default.” The two-month delay to which Rubin alluded was dealt with in Mercantile Collection Bureau v. Pinheiro, decided March 27, 1948 by the Third District Court of Appeal. Justice Paul Peek, later a member of the California Supreme Court, said:

“[N]owhere in the record before us is there any showing whatever to excuse the failure of defendant to timely file his motion for relief, i.e., not only before the six months’ period had elapsed but also within a reasonable time, and the trial court’s refusal to set aside the default is justified on that ground alone.”

A delay of nearly six months was the subject of Jan. 5, 1988 decision by the First District’s Div. Two in Kendall v. Barker which reversed an order granting relief under §473. There, it was observed, citing Benjamin and three Court of Appeal cases, that “[u[nexplained delays of more than three months in seeking relief from default after knowledge of its entry generally result in denial of relief,” adding:

“Respondent, having waited almost twice that long to remedy the default after discovering its existence, cannot be said to have acted within a reasonable time.”

Rubin’s opinion comes in Bonura v. Ardin, B295423.

The attorneys on appeal were Gamboa for Ardin and Isaacs for Bonura.

 

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