Filed 6/9/20 Acosta v. Alvarado CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

FRANK P. ACOSTA,

Plaintiff and Respondent,

v.

MIKE ALVARADO,

Defendant and Appellant.

B300651

(Los Angeles County

Super. Ct. No. BC542436)

APPEAL from a judgment of the Superior Court of Los Angeles County, Holly J. Fujie, Judge. Affirmed.

Victor B. Meyen for Defendant and Appellant.

McCathern and Evan Selik for Plaintiff and Respondent.

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Mike Alvarado appeals from a default judgment entered against him and in favor of Frank P. Acosta. Alvarado moved to set aside the judgment on the ground that his prior attorneys listed his mother’s address instead of his own when they substituted out of the case. The trial court denied the motion, finding that Alvarado failed to show that the entry of his mother’s address was due to surprise, mistake, inadvertence, or excusable neglect. We agree and affirm the judgment.

BACKGROUND

Acosta is Alvarado’s former boxing manager. They agreed that Acosta would manage Alvarado’s professional boxing career and would receive a percentage of Alvarado’s earnings from boxing contests. The agreement also provided that if Alvarado became the titleholder or mandatory challenger in one of boxing’s major sanctioning bodies, the term of the agreement would extend until Alvarado was no longer a champion or mandatory challenger. In 2011, Alvarado won the WBO Latino Light Welterweight Title. He held that title until Acosta filed his complaint in 2015, thus extending the agreement through that period. In that complaint, Acosta stated various causes of action arising out of Alvarado’s alleged failure to pay him the amount owed under their agreement. Alvarado did not respond to the complaint, and the trial court entered a default judgment against him in September 2016.

Thereafter, Alvarado retained legal counsel and moved to set aside the judgment. The trial court granted the motion and Alvarado filed his answer to the complaint in March 2018. That next month, Alvarado’s lawyers substituted out of the case, and Alvarado proceeded in pro per. On the substitution of attorney form, Alvarado’s counsel listed Alvarado’s mother’s address in Colorado as Alvarado’s address.

In July 2018, the trial court held a status conference at which Alvarado did not appear. Therefore, the trial court scheduled an order to show cause regarding sanctions against Alvarado and to strike his answer. The trial court ordered Acosta to give notice of that hearing. Acosta mailed notice of the hearing to the address on Alvarado’s substitution of attorney form, that is, Alvarado’s mother’s residence. Alvarado failed to appear at the hearing on the order to show cause. The trial court struck Alvarado’s answer and entered default judgment against him.

Alvarado moved to vacate the default judgment on the grounds of mistake, inadvertence, surprise, or excusable neglect. Alvarado, his wife, and his mother submitted declarations in support of the motion, each claiming not to have received any notices regarding the case until after the hearing on the order to show cause. Alvarado did not provide an attorney declaration from his prior counsel regarding the substitution attorney form that listed his mother’s address.

The trial court denied Alvarado’s motion to set aside the judgment, noting that Alvarado did not claim that the lack of notice resulted from surprise, excusable neglect, inadvertence, mistake, or argue that his mother’s address was erroneously listed.

DISCUSSION

Alvarado challenges the trial court’s ruling denying his motion to set aside the judgment pursuant to Code of Civil Procedure section 473, subdivision (b). Under that section, the trial 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.” (Ibid.) Code of Civil Procedure section 473, subdivision (b) provides for both discretionary and mandatory relief from default judgments. The mandatory provision requires an attorney’s sworn affidavit that the attorney’s mistake, inadvertence, surprise, or neglect caused the entry of default. (Ibid.; Benedict v. Danner Press (2001) 87 Cal.App.4th 923, 927.) Alvarado did not submit an attorney declaration.

Therefore, the discretionary provision applies. Under the discretionary provision, the moving party has the burden to show that the neglect leading to default was excusable. (Jackson v. Bank of America (1983) 141 Cal.App.3d 55, 58.) We review motions for relief from default judgment for abuse of discretion. We will reverse only we if we find a clear case of abuse and a miscarriage of justice. (Grappo v. McMills (2017) 11 Cal.App.5th 996, 1006.) A defendant must show that the ruling was “arbitrary, capricious, whimsical, or exceeded the bounds of reason.” (Dreamweaver Andalusians, LLC v. Prudential Ins. Co. of America (2015) 234 Cal.App.4th 1168, 1171.) Under this standard, the defendant carries a heavy burden. (Ibid.)

Alvarado has failed to identify how the trial court abused its discretion in denying his motion to set aside the judgment. Alvarado did not provide a declaration or other evidence that his prior counsel listed the incorrect address for Alvarado. Nor did Alvarado state that his mother’s address was listed in error. His brief merely makes conclusory arguments that, after his counsel substituted out of the case, he never received any court papers indicating the status of the case. Alvarado therefore did not meet his burden to show he was entitled to relief from the default judgment or that the trial court abused its discretion.

DISPOSITION

The judgment is affirmed. Frank P. Acosta is awarded his costs on appeal.

NOT TO BE PUBLISHED.

DHANIDINA, J.

We concur:

EDMON, P. J.

EGERTON, J.