Case Name: Pacific Postal Credit Union v. Malik, et al.
Case No.: 113CV258029
Defendants Zishan Malik and Alexa Malik move for an order pursuant to Code of Civil Procedure section 473 to set aside default obtained as a result of their mistake, inadvertence, surprise, and/or excusable neglect. Defendants claim that they were unaware that they had to file a response and thought that appearing at court would be enough. Plaintiff Pacific Postal Credit Union opposes, arguing that Defendants had previously moved to transfer venue, which was denied, and still did not file an Answer. Plaintiff also moves for sanctions.
On October 23, 2013, Defendants filed a small claims action against Plaintiff in Santa Clara Superior Court, seeking to retain possession of a vehicle. On December 19, 2013, Plaintiff filed this action. (Smith Decl. ¶ 3.) Defendants were personally served in court on January 7, 2014, with the Summons, Complaint, and Plaintiff’s Application for Writ of Possession, set for hearing on March 4, 2014. (Smith Decl. Ex. 1.) The summons advises: “You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy served on the plaintiff.” (Smith Decl. Ex. 3.)
Defendants did not timely respond to the complaint, nor did they oppose Plaintiff’s Application for Writ of Possession. (Smith Decl. ¶ 5.) Default against Defendants was entered on March 5, 2014. (Smith Decl. Ex. 2.) On March 6, 2014, Defendants filed a motion to transfer venue, which was denied on April 3, 2014, the default having already been entered. (Smith Decl. ¶ 7.)
On April 22, 2014, Defendants, now acting through counsel, filed a motion to set aside default, set for hearing on May 22, 2014. The tentative ruling posted on May 21, 2014, denied the motion for failure to comply with section 473(b)(no proposed answer). Defendants did not contest the tentative ruling, and it became the order.
On June 2, 2014, Defendants filed this motion: a second application to set aside default.
Nowhere in the motion or the accompanying declarations is there any reference to the previous application or to Code of Civil Procedure section 1008. Judgment was entered on June 19, 2014.
I. Failure to Comply with Section 1008
“A party who originally made an application for an order which was refused […] may make subsequent application for the same order upon new of different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, and what order or decisions were made, and what new or different facts, circumstances or law are claimed to be shown. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex part motion.” (Cal. Code Civ. Proc., § 1008(b).)
When these statutory requirements are not met, the renewal motion must be denied. (Cal. Code Civ. Proc., § 1008(e): “No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.”)
Thus, this motion must be denied on this basis alone.
- Failure to Establish Excusable Mistake
Although Defendants repeatedly cite section 473.5, the motion is directed to section 473(b) and is premised on a mistake of law. Defendants submitted identical declarations, reciting the conclusion that they did not know that they had to respond. Defendants thought that when they were served with the papers, all they needed to show was show upon on the court date. In addition, Defendants argues that they are unfamiliar with the court process.
Plaintiff argues first that because judgment has already been entered, the present motion is moot. Second, Plaintiff argues that Defendants have failed to present any evidence to support the claim of mistake, inadvertence, surprise, or excusable neglect. Plaintiff argues that Defendant’s claim that they did not know they had to respond should not be allowed because ignorance of the law is not a justifiable excuse.
“The Court may, upon any terms as may be just, relieve a party […] from a judgment […] taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Cal. Code Civ. Proc., § 473(b).) Excusable neglect is that neglect which might have been the act of a reasonably prudent person under the same circumstances. (Alderman v. Jacobs (1954) 128 Cal.App.2d 273, 276.) Mere self-representation is not a ground for exceptionally lenient treatment. (Rapplyea v. Campbell (1994) 8 Cal.4th 975, p. 984.) The rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation. (Ibid. at p. 985.) Ignorance of the law by a self-represented litigant must be excusable to warrant relief: “The naivete of lay litigants in ‘rely[ing] on themselves to protect their substantial legal interests” does not afford a ground for relief from adverse results.” (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410 (quoting Rapplyea, supra, 8 Cal.4th at 979: affirming denial of section 473 motion).) “[R]elief may properly be denied when the record shows only ‘ignorance of the law coupled with negligence in ascertaining it.’ [Citation omitted.]” (Hopkins & Carley, supra, 200 Cal.App.4th at 1412-13.)
Defendants do not deny that they read the summons which instructed that a written response in thirty days is required. The sparse declarations provide no basis to conclude that Defendants, in the face of such clear direction, made any effort at all that would justify their apparent conclusion directly to the contrary. Defendants’ actions were not brought about by excusable mistake. The motion to set aside is denied.
- Motion for Sanctions
Plaintiff’s request for sanctions is based on section 473(b), which provides:
“The court shall, whenever relief is granted based on attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.”
Because relief was denied, section 473(b) does not apply. Therefore, the motion for sanctions is denied.
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