Eichenberg v. Moreno

Filed 1/23/07  Eichenberg v. Moreno CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

            APPEAL from the Superior Court of Riverside County.  Craig Reimer, Judge.  Affirmed.

            Aviles & Associates and Moises A. Aviles for Defendants and Appellants.

            Law Offices of Danuta W. Tuszynska and Danuta W. Tuszynska for Plaintiff and Respondent.

            Defendants Vivian and Javier Moreno appeal the trial court's denial of their motion for relief from default.  Defendants argue the trial court abused its discretion by denying their motion because the defaults entered against them were the result of a mistake of law and/or excusable neglect.  Defendant Javier Moreno also contends the default taken against him should have been set aside by the trial court because he has a meritorious defense to the action.

FACTUAL AND PROCEDURAL BACKGROUND

            Plaintiff Brian Eichenberg filed a complaint against defendants Javier and Vivian Moreno and Biokorium Day Spa alleging breach of contract, fraud and deceit, unlawful use of his name or likeness, failure to return a security deposit, defamation, and intentional interference with existing and prospective business relationships.  Defendants Javier and Vivian Moreno are husband and wife and business partners, and the complaint alleges these defendants are the owners and operators of defendant Biokorium Day Spa.  A discussion of the specific allegations in the complaint is not necessary to the determination of the issues raised on appeal.

            The record shows defendant Javier Moreno was served with the summons and complaint in this action on November 23, 2004.  Defendant Vivian Moreno was separately served with the summons and complaint on December 9, 2004.  Defaults were entered against both of these defendants on January 25, 2005.^[1] 

            On June 13, 2005, defendants filed a motion for relief from default.  In the first hearing on the motion, the trial court found the single declaration submitted in support of the motion by defendant Vivian Moreno insufficient to justify relief because it failed â€