House of London v. Creek

Filed 7/14/06 House of London v. Creek CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. M. Bruce Smith, Judge.

James A. Creek, in pro. per., for Defendant and Appellant.

McCormick, Barstow, Sheppard, Wayte & Carruth, David R. McNamara and Constance E. Roberts for Plaintiff and Respondent.

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Respondent, House of London, Inc. (London Properties), filed a complaint for breach of a listing agreement, misrepresentation, and unjust enrichment against appellant, James A. Creek. Creek was served with the complaint by mail and executed a notice and acknowledgment of receipt. However, Creek did not respond and his default was entered.

London Properties filed a request for entry of default judgment. At the time of the hearing on that request, Creek had a motion to set aside the default scheduled for a later date. The trial court ordered that London Properties have judgment on its complaint but stayed execution of that judgment pending the outcome of Creek's motion.

Creek's motion to set aside the default did not comply with Code of Civil Procedure section 473, subdivision (b), i.e., Creek failed to explain how the default had been taken against him due to mistake, inadvertence, surprise or excusable neglect. For example, Creek stated that he was not served timely and that he attempted to file his paperwork. He also objected to his case being heard by a court-appointed commissioner and questioned whether London Properties' attorney was a member of the California State Bar. The basis for Creek's motion was that he had been â€