Salcido v. Lopez CA4/1 ( 2023 )

Filed 3/30/23 Salcido v. Lopez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
DENISE SALCIDO, D080911
Plaintiff and Respondent,
v. (Riverside Sup. Ct.
No. PSC1909307)
ALBER LOPEZ et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Riverside County,
David M. Chapman, Judge. Affirmed.
Sobero Law Firm and Alberto Sobero for Defendants and Appellant.
S&S Injury Law Group and Ari M. Sharim for Plaintiff and
Respondent.
This case underscores the deleterious consequences of default.
Defendants who fail to answer a complaint within 30 days must provide a
valid basis for setting aside the resulting default on statutory or equitable
grounds. The trial court found that no such basis for relief had been shown
by the defaulting defendants in this case. As a result, they now face
judgments totaling millions of dollars in a case for which they had a
potentially meritorious defense.
Courts prefer to hear cases on their merits. Setting the defaults aside
here would have resulted in no prejudice to the plaintiff, as default judgment
had not been entered. Nonetheless, on our record, the trial court did not
abuse its discretion in denying defendants’ motion to set aside the defaults.
Defendants’ proffers were too insubstantial to merit statutory or equitable
relief. Specifically, Alber Lopez provided not even a colorable excuse for his
neglect that would warrant a statutory set aside under section 473,
subdivision (b) of the Code of Civil Procedure.1 And his parents Veronica and
Omar Camara, who waited eight months before seeking help from the court,
failed to show extrinsic mistake to support equitable relief. With defendants
offering no other basis to reverse the resulting default judgment, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This case stems from a two-car collision in Indio in April 2019.2 Gladys
Ponce was driving a tan-colored Toyota Corolla owned by her father Jose
Gutierrez. She traveled northbound on a single-lane road called Sun Gold
1 Further undesignated statutory references are to the Code of Civil
Procedure.
2 A copy of the complaint is not included in our record. For context, we
draw these facts from the collision report submitted along with the set aside
motion.
2
Street. Kaitlen Salcido sat in the rear passenger seat of Ponce’s vehicle. Sun
Gold ends in a T-intersection at Indio Boulevard, a four-lane east-west
roadway. Traffic on Sun Gold is controlled by a stop sign.
As Ponce made a left turn to go westbound on Indio Boulevard, her
vehicle was broadsided by a car traveling eastbound. That car was driven by
Alber Lopez. Kaitlen Salcido was transported to the hospital and later died
of her injuries.
In December 2019, Kaitlen’s mother Denise Salcido (Salcido) filed a
wrongful death action against the two drivers and their parents (presumably
as owners of the vehicles). This appeal solely concerns the case against Lopez
and his parents, Veronica and Omar Camara, who are referred to collectively
as “defendants.” Omar Camara was personally served on January 5, 2020
and received substitute service for his wife Veronica. Lopez was personally
served on February 18. Default was entered against the Camaras on
February 19.
Due to the COVID-19 pandemic, the Riverside County Superior Court
issued a series of emergency orders that prevented entry of default against
Lopez. Lopez was served with a new court mandated form in August 2020,
and the clerk’s office noted in the register of actions that default could be
entered against him on or after September 16. When Lopez failed to respond,
a default was entered on September 16.
Lopez and the Camaras retained counsel. On October 23, they filed a
motion to set aside the defaults. The motion was brought on statutory
grounds under sections 473, subdivision (b) and 473.5. But it also cited
Rappleyea v. Campbell (1994) 8 Cal.4th 975 (Rappleyea), a case that outlined
the requirements for equitable relief. Along with their motion, defendants
submitted a proposed answer and cross-complaint against Gladys Ponce and
3
her father Jose Gutierrez, alleging they were solely responsible for the
collision and loss of life. The proposed cross-complaint included as an exhibit
the police collision report finding Ponce, the driver of Kaitlen’s vehicle, at
fault for the accident by failing to stop at the stop sign before turning or yield
right-of-way.
Freshly retained, Alberto Sobero submitted a counsel declaration in
support of defendants’ set aside motion. He explained that he was retained
on September 23 and called opposing counsel two days later in an effort to
reach a stipulation to set aside the defaults. Opposing counsel told him to file
a motion.
No declaration was submitted by the Camaras or Lopez explaining the
reason for their default. But there were unsupported factual allegations
listed in numbered paragraphs within the body of the set aside motion, under
the caption “Statement of Facts.” Defendants admitted being served. They
stated the Camaras had limited English skills and went to the court for
guidance. At the clerk’s window, they were told that a case management
conference had been set for May 20. They believed they could come to court
on that date and present their case to a judge; they did not know they had to
file an answer. When they went to court on May 20, thinking their case
would be heard, they were told there would be no hearing. Default was
entered against the Camaras on February 19.
The motion’s “Statement of Facts” also offered details about Lopez.
Lopez e-mailed opposing counsel on September 14 requesting a 30-day
extension so he could seek an attorney. A printed copy of that e-mail request
was attached to the motion. Default was entered against Lopez on
September 16. It was only after retaining counsel on September 23 that he
and his parents “learned the meaning of default for the first time.” They
4
approached opposing counsel seeking a stipulation requesting the defaults to
be set aside and were advised to file a motion.
Salcido opposed the set aside motion. She argued that statutory relief
was unavailable under section 473.5 because Lopez and the Camaras
admitted to having actual notice. She further asserted that the Camaras
could not seek relief under section 473, subdivision (b) because more than
six months had passed since entry of default. Although Lopez did file within
the six-month window, Salcido maintained that he could not claim mistake or
excusable neglect where the summons form included a Spanish translation.3
An attorney declaration attached to Salcido’s opposition provided dates of
service and defaults.
After hearing arguments from counsel in a telephonic hearing that
defendants did not attend, the court confirmed its tentative ruling denying
the motion. Individually analyzing the defendants’ entitlement to statutory
relief, the court reasoned that section 473.5 had no application to the
Camaras who “admittedly had notice.” And because they filed outside the
3 The Judicial Council adopted a summons form for mandatory use
(SUM-100), which provides the following advisement in in English and
Spanish: “NOTICE! You have been sued. The court may decide against you
without your being heard unless you respond within 30 days. Read the
information below. [¶] 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. A letter or phone call will not protect you.
Your written response must be in the proper legal form if you want the court
to hear your case. . . . If you do not file your response on time, you may lose
the case by default, and your wages, money, and property may be taken
without further warning from the court. [¶] There are other legal
requirements. You may want to call an attorney right away. If you do not
know an attorney, you may want to call an attorney referral service. If you
cannot afford an attorney, you may be eligible for free legal services from a
nonprofit legal services program. . . .” (Judicial Council, Form SUM-100
[Rev. July 1, 2009].)
5
six-month window, they were likewise not entitled to statutory relief under
section 473, subdivision (b). As to Lopez, the court did not find a sufficient
showing of mistake to warrant relief under section 473, subdivision (b).
Although Lopez requested a 30-day extension from opposing on September 14
to hire counsel, he had been on notice of the pendency of the case since the
date of initial service in February. The court similarly concluded that none of
the defendants had shown extrinsic fraud or mistake warranting equitable
relief. “Defendants were not prevented from participating in the action and
neither the Camaras nor Lopez have offered declarations that establish the
facts upon which those arguments are based.”
Based on Salcido’s evidence alone, the court eventually entered a
default judgment in her favor in October 2021. It granted Salcido’s request to
amend the judgment in November. On December 10, 2021, the court entered
judgment awarding Salcido $1,913,457 in damages against the Camaras and
Gutierrez, and $3,413,457 in damages against Lopez and Ponce. Defendants
appealed.4
DISCUSSION
Defendants challenge the judgment on only one ground. They claim
the trial court erred in denying their motion to set aside the defaults. We
address the claims as to Lopez and the Camaras separately and conclude that
neither met even the minimal showing required for statutory or equitable
relief.
4 Defendants’ notice of appeal was filed on November 29, 2021. As it
references both the October judgment and November order amending it, the
appeal will be construed as taken from the subsequent entry of the amended
judgment on December 10. (ECC Construction, Inc. v. Oak Park Calabasas
Homeowners Assn. (2004) 122 Cal.App.4th 994, 1003, fn. 5; McClellan v.
Northridge Park Townhome Owners Assn. (2001) 89 Cal.App.4th 746, 751.)
6
A. The appeal is timely.
Salcido argues the appeal is untimely because it was not filed within 60
days of the trial court’s order denying the set aside motion. That order was
entered in December 2020, but the appeal was filed in November 2021. As
defendants point out, however, the order denying the motion to vacate the
default was not independently appealable. It was properly challenged on
appeal from the ensuing default judgment. (Rappleyea, supra, 8 Cal.4th at
p. 981.) Because defendants filed their notice of appeal within 60 days of the
judgment, the appeal is timely.
B. The court did not abuse its discretion in denying the set aside motion.
1. Applicable legal principles
Section 473, subdivision (b) grants statutory authority to set aside a
default that resulted from “mistake, inadvertence, surprise, or excusable
neglect.” Although only “neglect” is qualified by the adjective “excusable,”
“for relief on any or all of the stated grounds it must be shown that one’s
misconception was reasonable, or that it might have been the conduct of a
reasonably prudent person under similar circumstances.” (Shaddox v.
Melcher (1969) 270 Cal.App.2d 598, 601.) Relief is available for an honest
mistake of law, not where a party is ignorant of the law and negligent in
failing to look it up. (Security Truck Line v. City of Monterey (1953) 117
Cal.App.2d 441, 445; see A&S Air Conditioning v. John J. Moore Co. (1960)
184 Cal.App.2d 617, 620.) Ordinary prudence is a prerequisite to relief under
section 473, subdivision (b). (Elms v. Elms (1946) 72 Cal.App.2d 508, 513
(Elms).)
To obtain a statutory set aside under section 473, the moving party
bears the burden to show both a satisfactory excuse for defaulting and
diligence in moving to set the default aside upon discovery. (Huh v. Wong
7
(2007) 158 Cal.App.4th 1406, 1420.) There is a six-month time limit to seek
relief under this provision. (Schapell Socal Rental Props., LLC v. Chico’s
FAS, Inc. (2022) 85 Cal.App.5th 198, 212 (Schapell).)
In certain cases, a motion to set aside a default may also be brought
pursuant to section 473.5. That statute authorizes a court to set aside a
default or default judgment where service of the summons did not result in
actual notice. (§ 473.5, subd. (a); Schapell, supra, 85 Cal.App.5th at p. 212.)
To obtain relief, the moving party must submit a declaration showing that his
or her lack of actual notice was not the byproduct of avoidance of service or
inexcusable neglect. (§ 473.5, subd. (b); Schapell, at p. 212.) Because it is
undisputed that each of the defendants had actual notice of the lawsuit, this
provision does not apply.5
Where statutory relief is unavailable, a trial court has inherent power
to vacate a default on equitable grounds. (Rappleyea, supra, 8 Cal.4th at
p. 981.) But the standards are more exacting. The moving party bears the
burden to prove that the default was procured by extrinsic fraud or mistake.
(Moghaddam v. Bone (2006) 142 Cal.App.4th 283, 290.) Extrinsic fraud
occurs where a defendant was kept ignorant or, by means other than his or
her own negligence, was prevented from fully participating in the proceeding.
5 The motion stated, “Omar Camara and Veronica Camara had notice
but lacked the English skills to understand the process,” and it admitted
service on all defendants. Attached to the motion was an e-mail from Lopez
to opposing counsel two days before the default requesting an extension,
impliedly admitting his actual notice. On appeal, defendants claim that
although they were served, language barriers and unfamiliarity with the
judicial process left them in the dark as to “what they received or what they
had to do in response.” But they offer no authority—and we can find none—
to support the idea that a defendant’s lack of comprehension of the legal
significance of a summons amounts to a lack of notice giving rise to a
statutory remedy under section 473.5.
8
(Ibid.) In essence, extrinsic fraud involves one party preventing the other
from having his or her day in court. (Ibid.) Extrinsic mistake is “a term
broadly applied when circumstances extrinsic to the litigation have unfairly
cost a party a hearing on the merits.” (Rappleyea, at p. 981.) It involves
excusable neglect due to circumstances such as relying on an attorney who
becomes incapacitated or on incorrect guidance by the clerk’s office. (Id. at
pp. 982−983; Moghaddam, at p. 290.)
We review the decision to grant or deny a statutory or equitable set
aside motion for abuse of discretion. (Schapell, supra, 85 Cal.App.5th at
p. 212; Rappleyea, supra, 8 Cal.4th at p. 981.) “But there is an important
distinction in the way that discretion is measured in section 473 cases. The
law favors judgments based on the merits, not procedural missteps.” (Lasalle
v. Vogel (2019) 36 Cal.App.5th 127, 134 (Lasalle); see § 583.130.)
Accordingly, “doubts must be resolved in favor of relief, with an order denying
relief scrutinized more carefully than an order granting it.” (Lasalle, at
p. 134; see Shamblin v. Brittain (1988) 44 Cal.3d 474, 478 (Shamblin).) As a
corollary to this rule, when the defaulting party promptly seeks relief and
there is no prejudice to the other side, “very slight evidence” is required to
justify granting relief. (Shamblin, at p. 478; Mink v. Superior Court (1992)
2 Cal.App.4th 1338, 1343; Lasalle, supra, 36 Cal.App.5th at p. 140.)6
Our generally deferential standard of review sometimes conflicts with
the strong policy preference for trial on the merits. As Witkin explains, “[i]n
borderline cases, the second principle has the greater weight.” (Witkin,
Summary of Cal. Procedure (6th Ed. 2022), Attack on Judgment in Trial
Court, § 196.) The question is whether this is a borderline case warranting
6 A stronger showing may be required to obtain equitable relief.
(Aheroni v. Maxwell (1988) 205 Cal.App.3d 284, 291.)
9
relief. For reasons explained below, we are compelled by our record to
conclude it is not.
2. Alber Lopez
Lopez was initially served with the summons and complaint in
February 2020 and served again in August with a form prepared by the
Riverside Superior Court in response to the COVID-19 pandemic. Notation
in the register of actions permitted entry of default 30 days after the second
service, on or after September 16. On September 14, Lopez e-mailed Salcido’s
counsel requesting a 30-day extension to find a lawyer. Default was entered
on September 16.
The set aside motion was filed on October 23. There was no supporting
declaration by Lopez attesting to the reasons for the default. 7 But even if we
credit the facts contained in the body of the motion (under the arguable
theory that a court receiving it would be obliged to afford a chance to
resubmit with a proper declaration) they suggest only that Lopez did not
learn the meaning of a default until retaining counsel on September 23 and
had tried but failed to get an extension from opposing counsel. The set aside
motion mentioned a language barrier only as to the Camaras, not Lopez,8
7 Had his counsel admitted fault in his declaration, relief under section
473, subdivision (b) would be mandatory on a bare allegation of mistake,
inadvertence, surprise, or neglect. (See Martin Potts & Assocs., Inc. v.
Corsair, LLC (2016) 244 Cal.App.4th 432, 438−440.) But the declaration
submitted here indicated that counsel was retained after the default and
worked expeditiously to set it aside.
8 We note the briefs on appeal are somewhat vague about Lopez’s
English proficiency. Rather, it is suggested that the defendants collectively
possessed “limited understanding of English or the court’s procedure.”
10
and as Salcido noted in her opposition brief, the summons was also printed in
Spanish.
The problem for Lopez is that these facts do not amount to even “very
slight” evidence of excusable neglect or mistake to merit relief under section
473, subdivision (b). “In examining the mistake or neglect, the court inquires
whether ‘a reasonably prudent person under the same or similar
circumstances’ might have made the same error.” (Bettencourt v. Los Rios
Community College Dist. (1986) 42 Cal.3d 270, 276.) As a general rule, “[i]t is
the duty of every party desiring to resist an action or to participate in a
judicial proceeding to take timely and adequate steps to retain counsel or to
act in his own person to avoid an undesirable judgment. Unless in arranging
for his defense he shows that he has exercised such reasonable diligence of a
man of ordinary prudence usually bestows upon important business his
motion for relief under section 473 will be denied.” (Elms, supra, 72
Cal.App.2d at p. 513.)
Because ordinary prudence is required, courts have rejected such
excuses as mislaying documents (Yarbrough v. Yarbrough (1956) 144
Cal.App.2d 610, 615 (Yarbrough); Cruz v. Fagor America, Inc. (2007) 146
Cal.App.4th 488, 506), forgetting to respond (Kooper v. King (1961) 195
Cal.App.2d 621, 626), or being “buried” at work and dealing with family
illness (Bellm v. Bellia (1984) 150 Cal.App.3d 1036, 1038). Although Lopez
claimed to not understand the legal consequence of a default, a trial court
does not “have the legal power to set aside the default simply because the
defendant did not realize the legal effect of failing to file an answer.”
(Yarbrough, at p. 615.)
Lopez e-mailed opposing counsel on September 14, two days before his
default, requesting an extension. Alone, this extension request does not help
11
him. Where a request to opposing counsel seeking a time extension remains
unanswered, a subsequent failure to answer amounts to inexcusable neglect.
(Iott v. Franklin (1988) 206 Cal.App.3d 521, 531.) This is because courts do
not countenance unilateral, self-created extensions of time. (Ibid.) Thus, the
two reasons offered by Lopez to the trial court—not understanding the
consequences of default and having requested an extension of time from
opposing counsel—do not establish excusable neglect in failing to answer.
We pause to note that Lasalle, supra, 36 Cal.App.5th 127 (Lasalle)
reversed the denial of a set aside motion on facts that bear certain
similarities to our case. Like Lopez, the defendant in Lasalle sought a brief
extension from opposing counsel prior to entry of default. (Id. at p. 131 &
fn. 4.) In reasoning that her set aside motion should have been granted, the
appellate court emphasized a mandate in section 583.130 that applies with
equal force here—“ ‘all parties shall cooperate in bringing the action to trial
or other disposition.’ ” (Id. at p. 141.) Some factors in Lasalle also appear in
our record—the absence of prejudice in setting aside a mere default where a
default judgment was not yet entered, the complexity of the case, and the
existence of a potentially meritorious defense. (Id. at pp. 138−139.)
But there are significant differences too. The defendant in Lasalle was
an attorney sued for malpractice, and an ethics rule called into question the
sharp litigation tactics of plaintiff’s counsel in giving her notice before
seeking default. (Lasalle, supra, 36 Cal.App.5th at pp. 137−138.) More to the
point, while the defendant’s declaration “might have been more polished,” it
adequately explained how her circumstances as a single parent burdened
with a heavy family law caseload and navigating a messy divorce with
“significant family emergencies of her own, including an urgent need to take
care of taxes and unpaid mortgage payments lest she lose her home,”
12
impacted her ability to timely respond to the complaint. (Id. at pp. 140, 141.)
The defendant obtained counsel within four days of receiving the request for
entry of default, and she would have done so sooner but for another attorney’s
conflict of interest. (Id. at p. 131, fns. 3 & 4.) Because there would be no real
prejudice in granting the set aside motion, defendant’s declaration needed to
make only a “ ‘weak showing,’ ” and hers “crossed that threshold.” (Id. at
p. 140, italics omitted in first quote.)
It is the thoroughness of the declaration in Lasalle that clearly
distinguishes it from this case and compels a different outcome here. Unlike
the defendant in Lasalle, Lopez offered no reason for his delay besides not
knowing the significance of a default. That reason is inadequate (Yarbrough,
supra, 144 Cal.App.2d at p. 615), as mere naiveté does not compel a legal
remedy (Rappleyea, at p. 979). To the extent Lopez intended to argue that he
lacked fluency in English, he nowhere explained why the Spanish advisement
in the summons failed to put him on notice. Nor did Lopez make any
showing of extrinsic mistake that would justify a grant of equitable relief—a
mistake in failing to appreciate the consequence of default is intrinsic in
nature. (See Kulchar v. Kulchar (1969) 1 Cal.3d 467, 472−473 [courts deny
equitable relief where the fraud or mistake was intrinsic]; Barnett v.
American-Cal Medical Servs. (1984) 156 Cal.App.3d 260, 266 [no extrinsic
fraud where a party “had proper notice and an opportunity in the legal sense”
to prevent a default].) In short, Lopez failed to furnish a sufficient basis to
merit statutory or equitable relief.
In reaching this decision, we acknowledge the uncomfortable truth that
Salcido would suffer no prejudice from setting aside the default where a
default judgment had not yet been entered. Her wrongful death action raised
complex questions of liability, with the collision report finding Ponce—not
13
Lopez—at fault. In keeping with the spirit of section 583.130, opposing
counsel could have extended the courtesy of a stipulation to permit a trial on
the merits. And yet there is no statute or case law that requires relief from
default based merely on the absence of prejudice. Rather, defaulting
defendants are held to an admittedly flexible standard of “ordinary
prudence,” which here requires a better explanation of why Lopez defaulted.
As the Supreme Court has explained, “[p]rocedural law cannot cast a
sympathetic eye on the unprepared, or it will soon fragment into a
kaleidoscope of shifting rules.” (Rappleyea, supra, 8 Cal.4th at p. 979.)
Given the sparse proffer made by Lopez, we are compelled to find no abuse of
discretion in denying him relief.
3. Veronica and Omar Camara
A slightly different analysis applies as to the Camaras. Crediting for
purpose of analysis the factual summary contained in their motion, they did
not move to set aside the default until eight months after entry, when they
retained counsel and “learned the meaning of default for the first time.”
The motion suggested that the Camaras had “limited English speaking
skills.” At some unknown point after being served, they “went to court to ask
for guidance and were told at the [clerk’s] window that a hearing was set for
CMC (Case Management Conference) for 05/20/2020.” They “believed they
could come to court on 05/20/2020 and present their case to a Judge. They
also did not know that they had to file an answer.” When they arrived at
court on May 20, “thinking their case would be heard,” they instead “learned
that there would be no hearing.” The Camaras did not retain counsel until
four months later, on September 23. Their counsel then asked opposing
counsel to stipulate to set aside the default and allow an answer, but was told
to file a motion.
14
Section 473, subdivision (b) affords no relief to the Camaras because
they filed their set aside motion more than six months after entry of default.
(Rappleyea, supra, 8 Cal.4th at p. 980.) Instead, their motion was directed to
the court’s equitable power. (Id. at p. 981.) Here, as in Rappleyea, the
Camaras bore the burden to show extrinsic mistake, i.e., that “circumstances
extrinsic to the litigation have unfairly cost [them] a hearing on the merits.”
(Ibid.) To obtain equitable relief based on extrinsic mistake, a defendant
must show a meritorious case, satisfactory excuse for not timely presenting a
defense, and diligence in seeking to set aside the default. (Id. at p. 982;
Mechling v. Asbestos Defendants (2018) 29 Cal.App.5th 1241, 1246.)
Extrinsic mistake was shown in Rappleyea where self-represented out-
of-state defendants were misinformed by the clerk’s office about the fee for
filing their answer, causing their answer to be initially rejected. Plaintiff’s
counsel obtained entry of default and misled defendants into thinking they
could not argue inadvertence, mistake, or excusable neglect. Missing the six-
month deadline for statutory relief from default, the defendants found
themselves liable for a $200,000 default judgment. (Rappleyea, supra, 8
Cal.4th at pp. 978−979, 984.) In concluding equitable relief was warranted
on these “rare” facts, the Supreme Court cautioned that “mere self-
representation” or naiveté were not grounds to set a judgment aside. (Id. at
pp. 979, 984−985.) It was because of incorrect advice by the clerk’s office and
plaintiff’s counsel that the defendants were entitled to equitable relief. (Id.
at p. 985.)
Here, as in Rappleyea, the proposed answer and cross-complaint
suggest a potentially meritorious defense. (Rappleyea, supra, 8 Cal.4th at
p. 983.) The Rappleyea court reasoned that a one year delay was sufficiently
diligent to warrant equitable relief where only a default and not default
15
judgment had been entered. (Id. at p. 984 [diligence matters less where only
a default has been entered].) Ultimately, what distinguishes this case from
Rappleyea is the showing of extrinsic mistake. Lacking English fluency, the
Camaras apparently went to the clerk’s window for guidance, were told that a
case management conference had been set for May 20, and believed they
could present their case on that date.9 It is not clear what the clerk’s office
said to the Camaras and whether this guidance was offered before or after
they had already defaulted. Nothing in the proffered facts suggests anything
other than intrinsic mistake in understanding the summons and
misapprehending what would happen at a scheduled case management
conference.
For the first time on appeal, defendants cite “inordinate and unusual
delays and difficulties caused by the Covid-19 pandemic” as a basis for
equitable relief. We do not consider this argument because it was not made
to the trial court; if anything, it was plaintiff’s counsel who mentioned the
pandemic to explain why Lopez had to be served again in August. Moreover,
the Camaras defaulted in February, before Governor Newsom declared a
state of emergency on March 4, 2020, and before courts experienced COVID-
related delays. While the pandemic may well explain the Camara’s failure to
timely move to set aside the default under section 473, subdivision (b), we
already explained that diligence was not their downfall.
9 On appeal, the Camaras similarly state that while they “may have
received the summons and complaint, they did not understand what they
received or what they had to do in response, given their limited language
skills and lack of familiarity with the judicial process.” They mistakenly
believed they could present their defense at the May 20 case management
conference.
16
Ultimately, a strong policy preference for trying cases on their merits
cannot make up for the Camaras’ inadequate showing. It was their burden to
establish some basis to set aside the default for extrinsic mistake. They
submitted no evidence, and even crediting the facts outlined in their motion
would not close the gap. We are left to speculate as to what the clerk’s office
told the Camaras and when and how that communication led them to believe,
despite the Spanish-printed advisement in the summons, that they could
appear at the May 20 hearing in lieu of filing an answer. And they offer no
explanation for why it took an additional four months to obtain a lawyer. On
our record, we are compelled to find that the trial court did not abuse its
discretion in refusing to vacate their defaults on equitable grounds.
DISPOSITION
The judgment is affirmed. Salcido is entitled to her costs on appeal.
DATO, J.
WE CONCUR:
McCONNELL, P. J.
DO, J.
17