Spikes v. Ubence CA4/1 ( 2023 )

Filed 12/14/23 Spikes v. Ubence 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
KAREL SPIKES, D081249
Plaintiff,
TIFFANY UBENCE, as Successor in
(Super. Ct. No. 37-2019-
Interest, etc.,
00028310-CU-CR-CTL)
Appellant;
v.
AFSHIN KARIMI,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
James A. Mangione, Judge. Reversed and remanded.
Law Office of Geoffrey T. Bentley and Geoffrey T. Bentley for Plaintiff
and Appellant.
No appearance for Defendant and Respondent.
Tiffany Ubence, the successor in interest to deceased plaintiff Karel
Spikes, appeals from an order of the Superior Court setting aside a default
judgment that had been entered in her favor against defendant Afshin
Karimi. Appellant argues that the trial court did not have jurisdiction to
grant the motion because it was untimely. We agree, and therefore we
reverse the order.
I. PROCEDURAL HISTORY
Spikes filed a complaint against Karimi and The Dank House on June
3, 2019. Karimi received notification regarding the lawsuit and filed an
amended answer on February 14, 2020, but apparently did not respond
further. According to Karimi, he understood that the other defendant, The
Dank House, had negotiated and would pay a settlement on his behalf.
On June 17, 2020, Spikes filed a motion to compel responses to form
interrogatories served on Karimi, and, on January 11, 2021, Spikes filed a
motion for terminating sanctions against Karimi. The trial court entered a
default against Karimi on June 1, 2021, upon Spikes’ request, and on October
12, 2021, the court entered judgment by default against Karimi and in favor
of Spikes in the total amount of $55,525.45. Spikes died that same day,
October 12, 2021.
On November 23, 2021, Karimi filed a notice of motion and motion (“the
motion”) to set aside the June 1, 2021, default and the October 12, 2021
default judgment, along with a memorandum of points and authorities and a
declaration in support of the motion. The notice indicated that the motion
would be heard on May 27, 2022. On April 29, 2022, counsel for Spikes filed
a “Notice of Death” regarding Spikes. On May 6, 2022, Karimi filed an
additional declaration from his former lawyer admitting fault in failing to
respond to the discovery and the motion to compel discovery, and served the
motion and the supporting documents on attorney Bentley, on behalf of
“Plaintiff, Karel Spikes.”
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In the motion, Karimi contended that the default and the judgment
were “the result of the mistake, inadvertence, and neglect of his attorney,
Scott N. Salmu,” and in the supporting documents, he explained further that
he was unaware of the discovery or the defaults because his attorney did not
tell him about either. In the corresponding declaration, Salmu averred that
“[t]he default and default judgment were entered through my mistake, and/or
inadvertence, and/or neglect in that I failed to timely respond to discovery
propounded by Plaintiff, received the filings of Plaintiff’s motion to compel
discovery responses and failed to file any response, and/or failed to advise my
former Client/Defendant to do so.” Based on those assertions, Karimi sought
relief under Code of Civil Procedure section 473, subdivision (b).1
At the hearing on May 27, 2022, counsel for Karimi appeared, but no
one appeared for the plaintiff. The court granted defendant Karimi’s motion
to set aside the default and the default judgment, and signed the order
granting the motion.
Ubence, as Spikes’ successor in interest under Probate Code section
13100, timely appeals.
1 Undesignated statutory references are to the Code of Civil Procedure.
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II. DISCUSSION
A. Standard of Review
A trial court’s ruling granting discretionary relief under section 473,
subdivision (b) is reviewed for abuse of discretion. (Minick v. City of
Petaluma (2016) 3 Cal.App.5th 15, 24.) However, “[a]ny exercise of discretion
must rest on correct legal premises, of course, and in that respect our review
is de novo.” (Id. at p. 25.) It is an abuse of discretion to apply the wrong legal
standard. (Bank of America, N.A. v. Superior Court (2013) 212 Cal.App.4th
1076, 1089.)
B. Analysis
Karimi sought relief from the default and default judgment based on an
alleged mistake, inadvertence, surprise, or excusable neglect by his counsel,
pursuant to section 473, subdivision (b). He did not raise any other grounds
for relief in his motion or the supporting documents.
Section 473, subdivision (b) provides that “[t]he 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 proceeding taken against him or her
through his or her mistake, inadvertence, surprise, or excusable neglect.
Application for this relief . . . 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 six-month time limit for granting relief
under section 473, subdivision (b) is jurisdictional, and “the court may not
consider a motion for relief made after that period has elapsed.” (Mansor,
Iver & York v. Black (2009) 176 Cal.App.4th 36, 42 (Mansor); see also
Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340
(Arambula) [“An ‘application’ for mandatory relief must be made within six
months after entry of judgment . . . a court has no authority to grant relief
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under section 473, subdivision (b), unless an application is made within the
six-month period”].) The issue presented in this appeal is whether the
application was “made” within the six-month time frame. We conclude that it
was not.
Appellant contends that although Karimi filed his motion a little more
than a month after the entry of judgment of default, he failed to serve it until
May 6, 2022. He also did not file, or serve, the declaration from his former
attorney, Salmu, supporting the motion, until May 6, 2022. Appellant
correctly notes that the delay in service had the effect of delaying the
effective date of the motion for relief well beyond the six-month limit in
section 473, because the “application for relief” was not effective until service
was perfected. (Arambula, supra, 128 Cal.App.4th at p. 341
[“application . . . under section 473, subdivision (b) . . . is deemed to be made
upon filing in court of a notice of motion and service of the notice of motion on
the adverse party. [Citation.] [A]bsent service on the adverse party, there is
no ‘application’ for relief.”]; see also section 1005.5 [“A motion . . . is deemed
to have been made and to be pending before the court for all purposes, upon
the due service and filing of the notice of motion.” (Italics added.)].)
We acknowledge that Spikes did unfortunately pass away the same day
that the judgment was entered, and thus, could not be personally served.
Ubence contends that Bentley remained the attorney of record and continued
to represent Spikes’ estate, at least until April 29, 2022, for the limited
purpose of accepting service and responding to post-judgment motions until
the date the judgment became final. Karimi did not file a responsive brief
and, therefore, does not dispute this assertion. Moreover, Karimi did
eventually serve the papers on attorney Bentley, and noted that the service
was on behalf of “Plaintiff, Karel Spikes.” There is nothing in the record
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before us to suggest that Karimi made any attempt to do so before May 6,
2022.
Because section 473’s six-month limit had passed before the date of
service of the motion, both as to the default and as to the judgment for
default, we conclude that the trial court abused its discretion in ordering
relief from default beyond the six-month statutory limitation. (See
Arambula, supra, 128 Cal.App.4th at pp. 341–342 [finding a motion pursuant
to section 473, subdivision (b) that was not served within six months of entry
of judgment was untimely and the trial court had no authority to grant the
requested relief]; Mansor, supra, 176 Cal.App.3d at p. 42 [“to the extent the
trial court’s order granted statutory relief based on defendant’s showing of
mistake, inadvertence, surprise or excusable neglect, the motion was
untimely and the court was without jurisdiction to make the order].)
Moreover, as Ubence also points out, Karimi did not include a copy of
verified discovery responses along with his motion or serve such response on
appellant prior to the motion hearing. Thus, the motion was not in proper
form and, even setting aside the service issue, the trial court would have
abused its discretion by granting the motion for this additional reason. (See
Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 728–729.)2
2 Appellant further contends that Karimi is not entitled to relief from
default under principals of equity. Karimi has not filed a responding brief
and therefore has not requested that we consider such relief, and accordingly,
we decline to do so.
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III. DISPOSITION
The trial court’s order setting aside the default judgment is reversed
and the matter is remanded to the trial court with directions to enter a new
order denying the motion to set aside the default and the default judgment.
Appellant Ubence is awarded costs on appeal.
KELETY, J.
WE CONCUR:
O’ROURKE, Acting P. J.
IRION, J.
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