Filed 2/20/07 Proper T View, Inc. v. Carstens 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Donald A. Carstens, in pro. per., for Defendant and Appellant.
Somers & Somers and Robert H. Somers for Plaintiff and Respondent.
Defendant Donald A. Carstens (Carstens) appeals from an order denying his request for relief from default, and from orders denying his several motions for reconsideration. He asserts that the trial court had no choice but to grant the relief requested because he filed an attorney affidavit of fault under Code of Civil Procedure section 473, subdivision (b).[1] He further claims that the default was entered too soon because the time for his response had not yet passed, that plaintiff Proper T View, Inc.'s (PTV) seeking entry of default immediately after service was completed mandates that the default be set aside, and that since only slight evidence is required to justify setting aside a default, the trial court erred. We affirm.
Facts and Procedural History
On August 26, 2005, PTV filed a complaint against Carstens for unlawful detainer following a foreclosure sale. Carstens was notified by the clerk of the trial court that the complaint had been filed. On October 4, 2005, PTV sought permission to serve the summons and complaint on Carstens by posting and certified mailing under section 415.45. That same day the trial court ordered that the summons and complaint be posted on the property and that a copy also be mailed by certified mail to the address. The order further indicated that service was complete on the tenth day after posting and mailing. On October 13, 2005, PTV filed a proof of service indicating that the summons and complaint was posted on the property on October 4, 2005, and that copies were mailed by certified mail on October 11, 2005.
On October 27, 2005, PTV filed a request for entry of default judgment against Carstens, which the clerk of the trial court entered that same day. On November 7, 2005, Carstens, acting in pro. per., filed a motion to set aside the default based upon (1) the fact
that PTV mailed the request for entry of default two days prior to the time the response to the complaint was due, and (2) the failure to respond being excusable under section 473 since he did not see the posting and did not believe service had been effected. A motion to quash service of summons was filed contemporaneously with the motion to set aside. Carstens claimed that the summons and complaint were not posted on the property but that he had notice of the action when he received the certified mailing on October 21, 2005. He also claims that he did not know of the purported service by posting until he reviewed the court file. He received the request for entry of default by mail on October 26, 2005. At a hearing on November 21, 2005, Carstens's motion was denied.
On December 8, 2005, PTV obtained a judgment against Carstens based upon his default.
On January 20, 2006, Carstens filed an ex parte motion for reconsideration of the January 3 and January 13, 2006, orders denying his motions to set aside the default judgment. The evidence in the record of a hearing on January 3, 2006, consists of the notation in the register of actions that a motion to set aside default was denied and Carstens's declaration that he moved the court to set aside his default based upon section 473, subdivision (b). The only evidence in the record of a hearing on January 13, 2006, is a minute order reflecting that a motion for reconsideration of an order denying a motion was also denied. No moving or opposing papers for these motions are before this court. The January 20, 2006, motion was based upon the fact that attorneys George Wass and Charles Ferrari were unable to offer testimony at the time of the January 13, 2006, hearing and also upon a revised declaration that Mr. Ferrari provided, which was appended to the motion, asserting that Carstens's failure to file a responsive pleading had been Mr. Ferrari's fault. The motion for reconsideration was denied and sanctions were imposed against Carstens in the amount of $900 pursuant to section 128.5. This appeal followed.
Discussion
Preliminarily, we note that Carstens repeatedly reports in his briefs that items are missing from the record despite his request that they be included. Fundamentally, it is the burden of the appellant to provide a record on appeal that is sufficient to adjudicate the claims that are made. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 148-149.) â€
Description
Defendant appeals from an order denying his request for relief from default, and from orders denying his several motions for reconsideration. Defendant asserts that the trial court had no choice but to grant the relief requested because he filed an attorney affidavit of fault under Code of Civil Procedure section 473, subdivision (b). He further claims that the default was entered too soon because the time for his response had not yet passed, that plaintiff Proper T View, Inc.'s (PTV) seeking entry of default immediately after service was completed mandates that the default be set aside, and that since only slight evidence is required to justify setting aside a default, the trial court erred. Court affirm.
