Superior Investments Management v. Marks CA2/6 ( 2022 )

Filed 10/19/22 Superior Investments Management v. Marks CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
SUPERIOR INVESTMENTS 2d Civil No. B314536
MANAGEMENT INC., et al., (Super. Ct. No. 56-2020-
00543440-CU-BC-VTA)
Plaintiffs and Respondents, (Ventura County)
v.
JOHN L. MARKS,
Individually and Trustee, etc.,
Defendant and Appellant.
John L. Marks, as an individual and trustee of the John L.
Marks Trust, appeals the trial court’s denial of his motion to set
aside default and default judgment after it found his default
constituted inexcusable neglect. (See Code Civ. Proc., § 473,
subd. (b).)1 We affirm.
All further statutory references are to the Code of Civil
1
Procedure, unless otherwise indicated.
FACTS AND PROCEDURAL HISTORY
In July 2020, respondents Superior Investments
Management, Inc., Tony Marino and Associates, Inc., and Linda
Kocalis Corwin, as trustee of the Harold Kocalis Trust, filed the
instant action against appellant, his wife, Anna Marks, and his
mother, Dorothy Marks (collectively “appellants”)2 alleging
damages for breach of obligation to pay money. (Civ. Code, §
3302.) In the first amended complaint, respondents contended
that appellants executed a promissory note in May 2020 for the
principal sum of $500,000 with interest, due and payable on June
26, 2020. Appellants subsequently defaulted on the note and
ignored respondents’ demand for repayment.
In October 2020, the trial court entered default after
appellants failed to file an answer. In late March 2021,
appellants moved the trial court to set aside default and default
judgment. In his motion for relief, appellant contended that he
was “overwhelmed” by the “stress” of personal family problems,
which caused him to misunderstand the “process and time
demands” to file an answer. He also claimed that he had not
seen, nor had he ever signed, the promissory note attached as an
exhibit to the complaint. He included a declaration from a
Certified Handwriting Examiner who opined it “unlikely” that
appellants signed the note.
The trial court denied the motion, stating that appellants’
motion focused primarily on the merits of their defense, and
“barely address[ed] the foundational issue of mistake,
inadvertence, surprise or excusable neglect.” The trial court
2 We will refer to the defendants collectively as appellants,
although Anna and Dorothy Marks did not appeal the trial
court’s order.
2
concluded appellants’ excuses “demonstrate[d] inexcusable
neglect, not excusable neglect.”
DISCUSSION
Section 473 grants a trial court the discretionary authority
to relieve a party from a judgment, order, or other proceeding
taken against him through his mistake, inadvertence, surprise or
excusable neglect. (Id., subd. (b).) Application for such relief
must be made within a reasonable time, and in no case exceeding
six months after such judgment, order, or proceeding was taken.
(Ibid.) The party seeking relief bears the burden to establish a
right to relief. (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th
1401, 1410; Transit Ads, Inc. v. Tanner Motor Livery, Ltd (1969)
270 Cal.App.2d 275, 279 (Transit Ads, Inc.).)
As we have previously stated, an appellant who seeks
reversal of a trial court’s discretionary ruling has a “‘daunting
task.’” (Dreamweaver Andalusians, LLC v. Prudential Ins. Co. of
America (2015) 234 Cal.App.4th 1168, 1171.) That is because a
ruling on a motion for discretionary relief shall not be disturbed
on appeal absent a clear showing of abuse. (Zamora v. Clayborn
Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.) In other
words, appellant must show that the trial court’s ruling was
“arbitrary, capricious, whimsical, or exceeded the bounds of
reason.” (Dreamweaver Andalusians, at p. 1171.) As we explain,
appellant has not satisfied this exacting standard.
Here, the trial court did not abuse its discretion in
concluding appellant had not established excusable neglect. As
pertinent to section 473, subdivision (b), excusable neglect means
an error that a “‘reasonably prudent person under . . . similar
circumstances’ might have made . . . .” (Bettencourt v. Los Rios
3
Community College Dist. (1986) 42 Cal.3d 270, 276; Transit Ads,
Inc., supra, 270 Cal.App.2d at p. 279.)
Appellant’s claim of “excusable neglect” rested on his
assertion that the stress of personal family problems, including
raising his grandchildren, caused him to miss the date to file an
answer to the complaint. But the trial court rejected this
explanation, concluding it was “beyond comprehension” that
appellant, “armed with a strong defense of wrongdoing by
plaintiff and with half a million dollars at stake, acted
reasonably” by his inaction in this case. We agree. A reasonable
person in appellant’s situation would have hired counsel to help
him navigate the process of responding to the complaint rather
than ignoring it altogether.
Contrary to appellant’s contention, the record does not
establish that he acted with “reasonable diligence.” For example,
he did not file the motion to set aside default until more than five
months after the entry of default. Appellant’s proffered
explanation for this delay was that he relied on respondents’
reassurances that she would dismiss the case. However, the trial
court found that explanation lacking.
Substantial evidence supports the trial court’s finding that
appellant’s failure to timely respond to the complaint and his
lengthy delay in seeking relief was not excusable neglect. In light
of our “limited” review, we will not substitute our judgment for
that of the trial court’s, even where contrary findings could have
been made. (See Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-
479; In re Marriage of Connolly (1979) 23 Cal.3d 590, 597-598.)
Appellant resists this conclusion and contends that reversal
is required because respondents will suffer no prejudice and the
law favors a trial on the merits. “Although the policy of the law
4
is to favor a hearing on the merits of a case, courts are not
required to set aside default judgments for defendants who
flagrantly ignore the responsibility to present a defense,” or who
cannot “demonstrate a satisfactory excuse for not responding” to
the original action. (Stiles v. Wallis (1983) 147 Cal.App.3d 1143,
1148.)
Lastly, appellant’s contention that the default judgment is
void on its face is waived because he did not raise it below. (See 4
Witkin, Cal. Procedure (6th ed. 2021) Pleading, § 124, p. 186.)
DISPOSITION
The order denying the motion to set aside default and
default judgment is affirmed. Respondents are awarded costs on
appeal.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
BALTODANO, J.
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Benjamin F. Coats, Judge
Superior Court County of Ventura
______________________________
Sollertis and Steven W. Blake, Giovanni A. Correa, for
Defendant and Appellant.
Freeman Fazio and Sara D. Fazio, for Plaintiffs and
Respondents.