Bonura v. Ardin CA2/5 ( 2021 )

Filed 3/10/21 Bonura v. Ardin CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
AMANDA BONURA, B295423
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC 685418)
v.
DEMIAN KOLUS ARDIN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Yolanda Orozco, Judge. Affirmed.
Kristine M. Gamboa and Ford, Walker, Haggerty, & Behar
for Defendant and Appellant.
Barak Isaacs and Law Offices of Barak Isaacs for Plaintiff
and Respondent.
__________________________
INTRODUCTION
Defendant Demian Kolus Ardin appeals from an order
denying his motion to vacate a default judgment against him. He
argues the trial court abused its discretion in finding that he did
not bring his motion in timely fashion. We affirm.
FACTS AND PROCEDURAL BACKGROUND
1. Plaintiff’s Lawsuit and Default Judgment
On January 25, 2016, a vehicle driven by defendant rear-
ended a vehicle driven by plaintiff. After pre-litigation efforts to
resolve the matter proved unsuccessful, on December 4, 2017,
plaintiff filed the instant action to recover damages for personal
injuries arising from the collision.
After unsuccessful attempts to serve defendant with
process via personal service, on December 18, 2017, a registered
process server served the summons, complaint, and statement of
damages on a “John Doe” at defendant’s home address on Denny
Avenue in North Hollywood. Plaintiff served those same
documents by mail addressed to defendant at the same location
the next day.
Defendant failed to file a timely response to the complaint.
On February 2, 2018, plaintiff’s counsel filed a request for entry
of default, which was entered by the clerk.
Defendant’s insurance company contacted defendant via
email on March 23, 2018, and advised him “there is a pending
lawsuit against [sic] pertaining” to the automobile accident on
January 25, 2016. On April 13, 2018, defendant replied by email
to the insurance company stating he would work with them on
the matter. Defendant’s insurance company retained counsel for
him in April 2018.
In the interim, on April 9, 2018, defense counsel called
plaintiff’s counsel, asked him if plaintiff was willing to stipulate
to set aside the default entered against defendant, and told him
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that without a stipulation, a motion to set aside would be filed.
Plaintiff’s counsel informed defense counsel that plaintiff would
not agree to set aside the default. Plaintiff’s counsel heard
nothing further from defense counsel and filed the necessary
documentation to obtain a default judgment. He mailed a copy of
the request for entry of judgment to defendant at his Denny
Avenue address. On August 3, 2018, a default judgment was
entered by the trial court in the amount of $59,900.41.
2. Motion to Set Aside Default
On August 20, 2018, defendant filed a motion to set aside
the default and default judgment. The motion identified two
grounds for discretionary relief: (1) under Code of Civil
Procedure section 473.5, subdivision (a) on the basis that service
of the summons and complaint did not result in actual notice to
defendant,1 and (2) under section 473, subdivision (b) because
default resulted from surprise and/or inadvertence. In the
motion, defendant asserted he “only learned of the instant
lawsuit when he spoke with his attorney . . . on July 12, 2018”
and that the set aside motion “was filed within a reasonable
period of time thereafter.”2
1 All subsequent statutory references are to the Code of Civil
Procedure.
2 Defendant’s motion stating he only learned about the
lawsuit in July 2018 contradicted the emails defendant produced.
Those emails show on March 23, 2018, defendant’s insurance
representative informed him that there was a pending lawsuit
against defendant related to plaintiff’s auto collision claim and
that defendant’s urgent response was needed. On April 13, 2018,
21 days after his insurance carrier first contacted him, defendant
responded to the representative via email, providing his phone
number and stating that he looked forward to working with the
insurance company on the matter.
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In his accompanying declaration, defendant asserted that
as of July 28, 2018, he had not received any court documents
from plaintiff, her counsel, the court, or anyone acting on their
behalf. He acknowledged the Denny Avenue address as his
address. Defendant stated he was unaware of the identity of the
“John Doe” served at Denny Avenue address, and he did not
know anyone who fits the description of “John Doe” as described
in the proof of service. Defendant attested he was surprised to
learn there was a default taken against him when he first spoke
to his counsel on July 12, 2018.
In defense counsel’s supporting declaration, counsel stated
that she was unable to reach defendant until July 12, 2018, and
that prior to that date, defendant did not respond to numerous
calls, emails, voicemails, and letters. Defense counsel attested
that she only obtained defendant’s declaration to file with the
motion from him on July 30, 2018.
Plaintiff opposed the motion, and defendant filed a reply.
On November 8, 2018, the trial court issued its written
ruling denying the motion. The court observed that section
473.5, subdivision (a), and section 473, subdivision (b) require the
notice of motion be served and filed within a reasonable time
following entry of default but no more than two years after entry
of default. The court reasoned:
“Although Plaintiff’s counsel states he served a copy of the
request for default entry on February 2, 2018, there is no
evidence he served notice that default was actually entered.
However, since it is clear that Defendant knew default had been
entered as early as April 9, 2018, when counsel for both parties
spoke about the default, the Court considers whether this Motion
was filed within a reasonable time from that date. Neither
Defendant nor defense counsel explains why, having knowledge
of the entry of default and having been informed in April 2018
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that Plaintiff would not stipulate to set aside default, they waited
until after default judgment was entered on August 3, 2018 to file
this Motion which wasn’t filed until August 20th. Therefore,
while technically timely, the Court finds this Motion was not filed
within a reasonable time.”3
The court continued: “Here, although Defendant declares
he did not learn of the default entry until July 2018, the request
for default entry was served on him at the same Denny Avenue
address and not on any attorney. However, an attorney calling
on Defendant’s behalf, contacted Plaintiff’s counsel seeking a
stipulation to set default aside in April 2018. Therefore,
Defendant’s statement that he was not aware of the default until
July 2018 is not credible. Again, neither Defendant nor defense
counsel explain the delay in bringing the instant Motion until
after default judgment was entered.”
3. Motion for Reconsideration
On December 3, 2018, defendant filed a motion for
reconsideration. In the motion, counsel argued: “Based upon the
Court’s own language contained in its Order as to the subjective
nature of ‘reasonable time’ in bringing his Motion, Defendant
respectfully requests that the Court reconsider its November 8,
2018 Order.” Neither the motion nor the accompanying
declaration by defense counsel provided a reason for the delay in
filing the motion to set aside. Plaintiff opposed reconsideration
3 The trial court’s statement that the motion was “technically
timely” presumably referred to the requirement under section
473.5, subdivision (a) that the motion must be filed within two
years after entry of default. The two years is an outside date. As
the trial court pointed out, the motion must also be made in a
reasonable amount of time following default. (See §§ 473.5, subd.
(a); 473, subd. (b).)
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as untimely and lacking new facts or law that would provide a
basis for relief.
On December 28, 2018, the court denied defendant’s motion
for reconsideration. The court explained that defense counsel
“did not state what new or different facts, circumstances, or law
warrant reconsideration,” or “that there is a reason why they
were not presented earlier.”
On January 28, 2019, defendant filed a notice of appeal, in
which he appealed the entry of default, the default judgment, the
denial of motion to set aside default and the denial of motion for
reconsideration.4
DISCUSSION
We begin our analysis with a recitation of the two statutes
under which defendant sought relief: sections 473.5, subdivision
(a), and 473, subdivision (b).
Section 473.5, subdivision (a) states: “When service of a
summons has not resulted in actual notice to a party in time to
defend the action and a default or default judgment has been
entered against him or her in the action, he or she may serve and
file a notice of motion to set aside the default or default judgment
and for leave to defend the action. The notice of motion shall be
served and filed within a reasonable time, but in no event
exceeding the earlier of: (i) two years after entry of a default
judgment against him or her; or (ii) 180 days after service on him
or her of a written notice that the default or default judgment has
been entered.” (Italics added.)
Section 473, subdivision (b) reads: “The 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
4 On appeal, defendant makes no argument about the motion
for reconsideration. We thus do not address it.
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proceeding taken against him or her through his or her mistake,
inadvertence, surprise, or excusable neglect. Application . . .
shall be made within a reasonable time, in no case exceeding six
months, after the judgment, dismissal, order, or proceeding was
taken.” (Italics added.) The amount of time that is considered
reasonable depends upon the facts and circumstances of each
particular case. (Carrasco v. Craft (1985) 164 Cal.App.3d 796,
805 [applying section 473].) The moving party must show
diligence after discovering default. (Kendall v. Barker (1988)
197 Cal.App.3d 619, 624 (Kendall) [applying section 473].)
We review the court’s ruling on request for relief from
default for abuse of discretion. (Austin v. Los Angeles Unified
School Dist. (2016) 244 Cal.App.4th 918, 929 [request under
section 473, subd. (b)]; Sakaguchi v. Sakaguchi (2009)
173 Cal.App.4th 852, 861 [request under section 473.5, subd.
(a)].)
Here, the court found plaintiff failed to bring the motion for
relief in a reasonable time. Defendant first contends he had two
years to bring the motion –until August 2020 – under section
473.5. He asserts that because there was no proof of service for
the entry of default in the record, neither the clerk nor plaintiff
gave proper notice of the default and therefore he had the full two
year period to bring the motion. The two-year requirement in
section 473.5 and the six-month requirement in section 473 are
distinct from the defendant’s obligation to file its motion within a
reasonable time. (See Mercantile Collection Bureau v. Pinheiro
(1948) 84 Cal.App.2d 606, 609 (Mercantile) [“in addition to the
necessity of making application within the six months’ period it
also must be made within a reasonable time, and what is
reasonable must depend primarily on the facts and circumstances
of each individual case”].)
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The trial court specifically found the delay in bringing the
motion was unreasonable and that defendant was not credible in
stating he did not know of the lawsuit and default until mid-July
2018. The court based its finding on the following: (1) defendant
was served via mail with the complaint and the request for
default at his undisputed home address, (2) defendant
acknowledged the lawsuit in an email to his insurance company
in April 2018, (3) defense counsel asked plaintiff’s counsel to set
aside the default in April 2018, and (4) defendant and defense
counsel failed to explain defendant’s absence from the litigation
from April to July 2018.5
Defendant mischaracterizes the court’s ruling when he
argues that the court improperly imputed defense counsel’s
knowledge of the default to him. On the contrary, the court found
that defendant himself knew of the lawsuit and default as early
as April 2018, but simply did not act in a timely fashion to
address it, and instead waited more than four months.6 “[A]s to
the affidavits relating to proof of excuse and diligence, the rule
for resolving conflicts is the same as that governing oral
testimony and it is for the court below to determine the
credibility of those executing the affidavits and the weight of the
5 The court’s finding that defendant was not credible when
defendant said he did not learn of the default until July 2018 is
consistent with the implied finding that defendant and his
attorney discussed the default on or about April 9, 2018, the date
plaintiff’s attorney told defendant’s attorney that plaintiff would
not stipulate to set aside the default. (Ermoian v. Desert Hospital
(2007) 152 Cal.App.4th 475, 494 [“Ordinarily, when the court’s
statement of decision is ambiguous or omits material factual
findings, a reviewing court is required to infer any factual
findings necessary to support the judgment.”].)
6 The court found the delay was from April to August 2018.
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evidence so adduced [citation]. With the lower court’s
determination of these matters an appellate court will not
interfere.” (Fidelity Federal Sav. and Loan Asso. v. Long (1959)
175 Cal.App.2d 149, 153.)
By brief comparison to other appellate decisions, we
conclude the court did not abuse its discretion in finding
defendant’s unexplained four-month delay was unreasonable. A
two-and-a-half month delay was found unreasonable where “[n]o
attempt to explain or excuse the failure to file the demurrer with
the clerk within the time required was made” and “nowhere in
the record . . . is there any showing whatever to excuse the failure
of defendant to timely file his motion for relief.” (Mercantile,
supra, 84 Cal.App.2d at pp. 607, 609.) Unexplained delays of
three and nearly six months have also been found unreasonable.
(Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 529; Kendall,
supra, 197 Cal.App.3d at p. 623.)
DISPOSITION
We affirm the judgment. Plaintiff Amanda Bonura is
awarded her costs on appeal.
RUBIN, P.J.
WE CONCUR:
BAKER, J.
MOOR, J.
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