Case Number: BC496078 Hearing Date: April 16, 2014 Dept: 34

Moving Party: Defendant Craig Lightner (“defendant”)

Resp. Party: Plaintiff Azure McAffee (“plaintiff”)

Defendant’s motion for relief from default is DENIED.

The Court takes judicial notice of the existence of defendant’s exhibits A, B, and D, but declines to take judicial notice of the statements made therein. (See Evid. Code, § 452(d).) The Court declines to take judicial notice of defendant’s exhibits C and E because the tentative rulings are not orders of the Court.

BACKGROUND:

Plaintiff commenced this action on November 20, 2012, against defendants for: (1) battery; (2) assault; (3) sexual battery; (4) discrimination (FEHA); (5) harassment (FEHA); (6) retaliation (FEHA); (7) failure to prevent discrimination, harassment, and retaliation (FEHA); (8) wrongful termination in violation of public policy; (9) violation of the Ralph Civil Rights Act; (10) violation of the Tom Bane Civil Rights Act; (11) gender violence; (12) failure to pay wages; (14) failure to pay overtime; (15) failure to indemnify for necessary expenditures and losses; (16) restitution of wage deductions; (17) failure to provide meal and rest breaks; (18) failure to provide itemized wage statements; (19) waiting time penalties; and (20) unfair competition.

On 2/27/13, the Court granted defendant’s motion to quash service of summons. Plaintiff thereafter re-served summons and complaint. Default was entered against the moving defendant on 5/21/13.

On 9/5/13, defendant moved to set aside the default. The motion was heard on 9/27/13. The Court denied the motion, finding that defendant failed to provide a copy of the proposed responsive pleading.

On 11/22/13, defendant filed a renewed motion to set aside the default. The motion was heard on 12/19/13. The Court again denied the motion.

ANALYSIS:

Defendant states that “This motion marks the third in a trilogy of attempts by Mr. Lightner to defend this case on its merits.” (Motion, p. 4:1-2.) Plaintiff, not surprisingly, views this differently. “Defendant now asks for a third bite of the apple (not including his two motions to quash service) for issues that have already been adjudicated.” (Opp., p. 9:21-22.) The Court believes that plaintiff’s analysis is correct and for the reasons below, denies Mr. Lightner’s third attempt at relief from a default that resulted from his decision not to defend this case on its merits.

Procedural Analysis

Defendant makes this motion pursuant to Code of Civil Procedure section 473.5 and section 473(b).

A motion pursuant to Code of Civil Procedure Section 473 must be made “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., §473(b)). It may be an abuse of discretion to grant relief under Code of Civil Procedure Section 473 where there is unexplained delay of over three months before moving for relief. (See Huh v. Wang (2008) 158 Cal.App.4th 1406, 1421-1422.) “While six months—the longest time allowable—represents the outside limit ‘of the court’s jurisdiction to grant relief in any event, the “reasonable time” test stands as an independent consideration and in any given situation, its determination, within the maximum six-month period, “depends upon the circumstances of that particular case.” ’ ” (Id. at p. 1422 [quoting Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 530].) The moving party must provide evidence explaining the delay in seeking relief. (Huh, 158 Cal.App.4th at p. 1422.) “[T]he circumstances occasioning the attorney’s delay of more than three months before the institution of these proceedings should have been presented in support of [the moving party]’s motion for relief.” (Benjamin, 31 Cal.2d at p. 532.) “To hold otherwise—that in the absence of any explanation a delay of more than three months in undertaking to open a default can be excused—would empower the trial court to dispense with the ‘reasonable time’ requirement of the statute.” (Ibid.)

Defendant filed the instant motion on 3/4/14 – over eleven months after default was entered and over two months after the Court issued its order on 12/19/13. Defendant provides the declaration from his former attorney, Michelle Terry, who states that she believed that the first motion to set aside default, filed in September 2013, was timely and that defendant had already met its procedural requirement and was no longer subject to the six-month deadline. (Terry Decl., ¶ 7.)

Substantive Analysis

1. Section 473(b)

Defendant argues that the mandatory provision of this section applies because his former attorney erred in combining the September 2013 motion to quash and motion to set aside default, failed to include a proposed answer with the moving papers in September, and failed to timely file the November motion.

Under Code of Civil Procedure section 473, subd. (b), “[t]he court may, upon any terms as may be just, 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.” “[B]ecause the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.)

Relief is mandatory “whenever (1) an application is made no more than six months after entry of judgment, (2) the application is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, and (3) the attorney’s mistake, inadvertence, surprise or neglect in fact caused the dismissal or entry of default.” (Benedict v. Danner Press (2001) 87 Cal.App.4th 923, 927 [citing CCP §473(b)].)

The Court rejects defendant’s argument that the combining of the motion to quash with the motion to set aside default in fact caused defendant to remain in default. The Court notes that, even if defendant had not combined the motions and/or if the Court had not determined that this constituted a general appearance, the motion to quash still would have been denied as untimely. A motion under CCP section 418.10(a) must be filed “on or before the last day of his or her time to plead or within any further time that the court may for good cause allow.” (Code Civ. Proc., § 418.10(a).) Defendant’s motion was filed on 9/5/13, but the summons/complaint were served on 4/3/13. Regardless of whether defendant was properly served, defendant’s counsel admitted she had knowledge of the default in late July 2013. (See Terry Decl., ¶ 3; Terry Decl. [filed with the 9/5/13 motion], 4.) There has been no explanation as to why defendant could not have timely submitted the motion to quash. More importantly for this motion, there is no showing that the untimeliness was caused by defense counsel’s mistake, surprise, inadvertence, or neglect. Therefore, defendant has not met his burden to show that the motion to quash would have been granted had it not been combined with the motion to set aside default.

As for the denial of the two motions to set aside default, defendant’s former counsel declares that the failure to include a proposed answer with the 9/5/13 motion and the untimely filing of the 11/22/13 motion were due to her office’s inadvertence and/or neglect. (See Terry Decl., ¶¶ 4, 9.) Defendant fails to establish that these procedural errors in fact caused him to remain in default because he does not sufficiently show that, had his former counsel complied with the procedural requirements, the motions would have been granted. The Court notes that, even after it found that the 11/22/13 motion was untimely, it proceeded to address the motion on the merits. (See Minute Order dated 12/19/13, pp. 4-10.) In fact, the vast majority of the Court’s Order – 7 out of 11 pages – analyzed the substantive merits of Mr. Lightner’s motion. The Order is explicit: the Court expressly denied the motion “[f]or both the procedural and substantive reasons” discussed in the minute order. (See id., p. 10.)

Accordingly, defendant’s request for relief under section 473(b) is DENIED.

2. Section 473.5

Defendant once again seeks relief under section 473.5, despite the fact that the Court has already determined that this section provides no relief. (See Minute Order, 12/19/13, pp. 4-5.) The Court therefore construes this request as a motion for reconsideration.

“A motion for reconsideration may only be brought if the party moving for reconsideration can offer ‘new or different facts, circumstances, or law’ which it could not, with reasonable diligence, have discovered and produced at the time of the prior motion…. A motion for reconsideration will be denied absent a strong showing of diligence.” (Forrest v. State Of Cal. Dept. Of Corps. (2007) 150 Cal.App.4th 183, 202. ) Under California Code of Civil Procedure, section 1008, the burden on the moving party “is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.” (New York Times Co. v. Sup.Ct. (Wall St. Network, Ltd.) (2005) 135 Cal.App.4th 206, 212-13.) The moving party must present a “satisfactory explanation for failing to provide the [information] earlier, which can only be described as a strict requirement of diligence.” (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.)

Defendant fails to provide any new or different facts, circumstances, or law that could not have been presented with the 11/22/13 motion. Defendant primarily relies on Olvera v. Olvera (1991) 232 Cal.App.3d 32, a case that was clearly decided before the previous motions were filed. There is no showing as to why defendant did not cite to this case in his two previous motions.

Defendant’s request for relief under this section also fails because section 473.5 “is designed to provide relief where there has been proper service of summons . . . but defendant nevertheless did not find out about the action in time to defend.” (Weil & Brown, Civ. Proc. Before Trial (The Rutter Group 2013) ¶ 5:420.) Here, defendant is arguing that service was not proper. Therefore, a request for relief from default is more properly made under section 473. (See ibid.)

Accordingly, defendant’s request for relief under section 473.5 is DENIED.

3. Equitable relief

With the instant motion, defendant for the first time seeks equitable relief from the default. Equitable relief may be granted in exceptional circumstances after six months even if statutory relief is unavailable for reasons such as the time limits have expired. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981. See also Code Civ. Proc., § 473(b).)

Equitable relief from judgments or dismissals is available only upon a showing of extrinsic factors like fraud or mistake. (Advanced Bldg. Maint. v. State Comp. Ins. Fund (1996) 49 Cal.App.4th 1388, 1395.) Extrinsic mistake broadly applies “when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits.” (Rappleyea, 8 Cal.4th at p. 981.) Parties seeking to set aside judgments on the grounds of extrinsic mistake or fraud one must show (1) a meritorious case, (2) a satisfactory excuse for not presenting a claim in the earlier proceeding and (3) diligence in seeking to set aside the judgment after discovery. (Id. at p. 982.)

Defendant argues that the procedural errors of his prior counsel constitute extrinsic mistakes. As discussed above, defendant fails to establish that these procedural errors cost him a hearing on the merits because the Court’s minute order from 12/19/13 shows that the Court denied the motion for substantive reasons as well.

Defendant fails to establish that he acted diligently in seeking relief from default. As discussed above, defendant’s motion to quash was not timely filed. The second motion for relief from default was also untimely. More recently, there is no explanation as to why defendant waited over two months after the Court’s 12/19/13 ruling to bring the instant motion.

Accordingly, defendant’s request for equitable relief is DENIED.