ase Number: SC114318 Hearing Date: May 08, 2014 Dept: P

TENTATIVE RULING – DEPT. P

MAY 8, 2014 CALENDAR No: 2

SC114318 — OHAVAT v. NEMAN

DEFENDANT’S MOTION TO VACATE JUDGMENT

The Court takes judicial notice of the prior proceedings in this case.

This is an action for assault and battery. After Defendant failed to appear for trial on October 7, 2013, the Court held an uncontested trial prove-up hearing and subsequently entered judgment for Plaintiff. On December 13, 2013 the Court denied Defendant’s motion for new trial, but reduced the judgment in Plaintiff’s favor (based on the Court’s award of $120,000.00 in non-existent lost income damages). Defendant now moves to set aside the February 14, 2014 amended judgment, asserting that although attorney Philip Metson had agreed to act as counsel at trial, Metson failed to appear at trial, and defendant did not appear because he was counting on Metson to appear. The Court will deny the motion.

Plaintiff filed an opposition brief explaining why the motion lacks merit. Nevertheless, Defendant (who, when the reply brief fell due on May 1, 2014, was represented by attorney Metson) failed to file a reply brief refuting those arguments. “The state is under no duty to provide counsel for private litigants in civil cases. There is neither reason nor justification for compelling a trial judge to act as a sort of advisory or ‘backup’ counsel.” Gagosian v. Burdick’s Television and Appliances (1967) 254 Cal.App.2d 316, 318. Accordingly, under the circumstances, by failing to file a reply brief, Defendant has impliedly conceded the points raised in Plaintiff’s opposition brief (whether or not he intended to do so). This alone merits denial of the motion.

In any event, the Court would still deny the motion insofar as it requests mandatory relief, for two independent reasons.

First, a properly noticed defendant who failed to appear for trial is not entitled to section 473(b) mandatory relief from a judgment entered for the plaintiff who appeared and presented the evidence supporting his case; such a judgment is not a default or a default judgment within the meaning of the mandatory provision of section 473(b), but rather a judgment following an uncontested trial. Vandermoon v. Sanwong (2006) 142 Cal.App.4th 315, 317-21; accord, English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130.

Second, even assuming arguendo that Metson’s declaration in support of the motion constitutes a proper attorney affidavit of fault and leaving Vandermoon and English aside, the mere filing of an attorney affidavit of fault does not automatically entitle a litigant to relief under the mandatory relief provision of section 473. Relief will be denied where “the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” CCP 473(b) (emphasis added). E.g., Milton v. Perceptual Development Corp. (1997) 53 Cal.App.4th 861, 866- 67 (afore-quoted provision of CCP 473(b) tests both the credibility of the affidavit of fault and the causation of the default). Here, Defendant made his own choice not to appear at the October 7, 2013 trial in this action, choosing instead to be on call, notwithstanding that he “live[s] within 15 minutes of the courthouse.” Neman Dec., para. 12. Defendant failed to appear at trial at his own risk, particularly considering that Metson had not substituted in as counsel in this action.

As to the request for discretionary relief under CCP 473(b): based on the facts stated in the motion and the opposition thereto, the Court exercises its broad discretion to decline that request.

Motion is denied in its entirety with prejudice to any motion, petition, or similar paper, however denominated, which directly or indirectly seeks to vacate the judgment and/or amended judgment in this action.

NOTICE

Plaintiff shall give notice of today’s rulings and timely file proof of service thereof, pursuant to CCP 1019.5 and CRC 3.1312