Filed 4/25/17 Duffy v. Paternostro CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



JOHN DUFFY,

Cross-complainant and Appellant,

v.

DAVID PATERNOSTRO,

Cross-defendant and Respondent.


E065158

(Super.Ct.No. CIVDS1415778)

OPINION


APPEAL from the Superior Court of San Bernardino County. Bryan F. Foster, Judge. Affirmed.
Law Offices of Harvey L. Katzman and Harvey L. Katzman for Cross-complainant and Appellant.
Builders Law Group and Nick M. Campbell for Cross-defendant and Respondent.
The trial court denied cross-complainant and appellant John Duffy’s motion to set aside a default judgment against him. Duffy contends the trial court erred by denying his motion and by not considering all the available evidence. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. COMPLAINT AND CROSS-COMPLAINT
On October 17, 2014, Duffy filed a complaint against cross-defendant and respondent David Alan Paternostro. On January 5, 2015, Duffy filed a first amended complaint (FAC).
On February 13, Paternostro filed a cross-complaint against Duffy. The causes of action included (1) breach of contract; (2) negligence; (3) breach of implied warranties; (4) intentional misrepresentation; (5) negligent misrepresentation; (6) fraudulent inducement; (7) recovery of money paid to unlicensed contractors; and (8) injunctive relief prohibiting mechanic’s liens.
The cross-suit arose from Duffy’s construction of Paternostro’s new house. Paternostro alleged Duffy was not a licensed contractor and Duffy’s work was substandard. Paternostro sought general and special damages not less than $135,000, pre and postjudgment interest, economic damages, punitive damages, treble damages not to exceed $10,000, attorney’s fees, costs, injunctions, and any other proper relief.
B. CHALLENGE TO DUFFY’S FAC
On February 13, 2015, Paternostro filed a motion to strike Duffy’s FAC. On February 18 Paternostro filed an amended demurrer to Duffy’s FAC and an amended notice of the motion to strike the FAC. No opposition was filed. The court held a hearing on March 26. Paternostro’s attorney was present. Duffy’s attorney was not present. The trial court sustained the demurrer as to all causes of action without leave to amend.
C. DEFAULT AND JUDGMENT
Also at the hearing on March 26, the trial court scheduled, for May 22, an order to show cause (OSC) re: a default judgment on the cross-complaint. On March 30 Paternostro requested a default be entered against Duffy on the cross-complaint. The default was entered the same day.
On April 24, 2015, Duffy filed an ex parte application to shorten time to hear a motion to set aside the default; Duffy wanted the motion heard before the May 22 OSC. Duffy’s attorney, Reid Winthrop, attached a declaration to the application. Winthrop declared he had advised Duffy to retain new counsel or cocounsel specializing in construction law to handle the case. Winthrop spoke to the new attorney on March 13 and learned the new attorney would not file an opposition to the demurrer. On March 30 the new attorney informed Winthrop that he (the new attorney) would not file an answer to the cross-complaint. Winthrop had not received notice of the request for entry of default prior to March 30.
On April 28 counsel for Duffy and Paternostro were present for the hearing on the application to shorten time and argued the matter. The trial court scheduled the hearing on the motion to set aside the default for June 16. The trial court held the June 16 hearing. No appearances were made at the hearing. The trial court took the matter off calendar due to the lack of appearances. The trial court mailed the minute order for the June 16 hearing to counsel of record.
On August 10, 2015, Paternostro requested the trial court enter judgment on his cross-complaint. On August 17, the trial court entered judgment on the cross-complaint in favor of Paternostro. The trial court awarded: (A) principal of $166,249.59; (B) interest of $15,573.47; (C) attorney’s fees of $8,438; (D) costs of $645; and (E) damages of $10,000. The total judgment was for $200,906.06. The notice of entry of judgment was filed on September 4, reflecting it was mailed to Duffy’s attorney on September 2.
D. SECOND MOTION FOR RELIEF
On October 13, 2015, Duffy filed a motion to set aside the judgment. Duffy’s attorney for the motion was Harvey L. Katzman. In the motion, Duffy asserted that his prior attorney, Winthrop, was hospitalized “[a]t the time of the June 16, 2014 [sic] hearing.”
A declaration by Winthrop was attached to the motion. Winthrop declared that he missed the June 16 hearing on the motion to set aside the default due to being admitted to the hospital on June 15. Winthrop further declared that he gave Katzman his medical records for June 8 through June 15, so the court could review the records in camera.
A letter from Winthrop’s doctor was also attached to the motion, reflecting Winthrop was an admitted hospital patient on June 15, 2015, and “is unable to work at this time.” The letter was dated June 16, 2015. A proposed answer to the cross-complaint was attached to the motion. Duffy generally denied the allegations in the cross-complaint and alleged 10 affirmative defenses, such as failure to state a cause of action and contributory negligence.
E. OPPOSITION
Paternostro opposed Duffy’s motion for relief. Paternostro asserted this was Duffy’s third attempt to obtain relief from the default following the April 24 ex parte application to shorten time and the June 16 motion hearing. Paternostro questioned why Duffy and Katzman did not file declarations in support of the motion to set aside. Paternostro also asserted Duffy’s motion failed to state Winthrop was unable to work at the time the default was entered. Additionally, Paternostro asserted Winthrop’s declaration in support of the April ex parte application placed blame on Duffy because Duffy was supposed to retain new counsel or cocounsel to handle the cross-complaint, and it reflected Winthrop knew of the deadline for responding to the cross-complaint. Paternostro asserted the April declaration belied the current claim of attorney fault.
F. JUDGMENT
On December 2, the trial court held a hearing on the motion to set aside the judgment. The parties were present and argued the motion. A reporter’s transcript of the hearing is not part of the record on appeal. The trial court denied the motion.
DISCUSSION
A. DENIAL OF THE MOTION
1. CONTENTION
Duffy contends the trial court erred by denying his motion to set aside the judgment because he met all the requirements for granting the motion.
2. STATUTORY RELIEF
Duffy’s motion to set aside the judgment cites to Code of Civil Procedure section 473, subdivision (b), which provides, in relevant part, “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment . . . 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 . . . or proceeding was taken.”
“The general rule is that the six-month period within which to bring a motion to vacate under section 473 runs from the date of the default and not from the judgment taken thereafter.” (Rutan v. Summit Sports, Inc. (1985) 173 Cal.App.3d 965, 970.) However, the default and judgment are separate procedures. (Ibid.) We apply the abuse of discretion standard of review. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.)
In this case, the default was entered on March 30. The motion to set aside was filed on October 13, approximately two weeks after the six-month deadline. Therefore, the trial court lacked jurisdiction to set aside the default. (§ 473, subd. (b); Rutan v. Summit Sports, Inc., supra, 173 Cal.App.3d at p. 970.) The judgment was entered on August 17, so the motion to set aside was within the six-month period for setting aside the judgment. We will treat the judgment as being separate from the default for the sake of addressing Duffy’s contention that the trial court erred in failing to set aside the judgment.
Nothing in Duffy’s motion to set aside addresses what went wrong in August 2015. There is nothing explaining why Duffy and/or his counsel were mistaken or otherwise unaware of the August 2015 judgment proceedings. The evidence in support of the motion focuses primarily on June 2015. Winthrop declared he remains ill and closed his office, but it is unclear if/when he referred Duffy to another attorney following his illness; if Winthrop was working despite closing his office; and what happened to the other attorney with whom Duffy had consulted in March. As a result, the trial court acted reasonably in denying Duffy’s motion to set aside the judgment because no clear reason was given for Duffy’s failure to timely address the August 2015 request to enter judgment on the cross-complaint.
3. EQUITABLE RELIEF
Duffy’s motion to set aside the judgment also cites a rule of equity, which provides that a motion made more than six months after the default was entered is not directed at the court’s statutory power to grant relief, but at its equitable power to grant relief due to extrinsic fraud or mistake. (Moghaddam v. Bone (2006) 142 Cal.App.4th 283, 290.)
“To set aside a judgment based on extrinsic fraud or extrinsic mistake, the moving party must satisfy three elements: ‘First, the defaulted party must demonstrate that it has a meritorious case. Secondly, the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Lastly, the moving party must demonstrate diligence in seeking to set aside the default once it had been discovered.’” (Moghaddam v. Bone, supra, 142 Cal.App.4th at pp. 290-291, italics omitted.) We apply the abuse of discretion standard of review. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.)
Diligence means the party seeking relief acted within a reasonable amount of time. (Weitz v. Yankosky (1966) 63 Cal.2d 849, 856-857.) Winthrop declared that he was admitted to the hospital on June 15 and therefore was unable to attend the hearing on June 16 because he was suffering from “severe medical complications.” Duffy fails to provide an explanation as to what occurred between June 16 and October 13 that prevented him from seeking relief from the default. Duffy presumably had notice of the June 16 hearing because the June 16 hearing was scheduled by the court during the April 28 hearing at which Winthrop was present. There is no evidence demonstrating why Duffy failed to follow up on the matter during July, August, and September. Therefore, we conclude the trial court did not err because the court could reasonably conclude Duffy failed to show diligence in seeking to set aside the default. (See DeMello v. Souza (1973) 36 Cal.App.3d 79, 86 [diligence is a prerequisite for equitable relief].)
In Duffy’s Appellant’s Opening Brief, he asserts he was relying on Winthrop as his attorney until September 2015, and Winthrop had been incapacitated. Duffy provides no record citation to support this assertion. (Cal. Rules of Court, rule 8.204(a)(1)(C).) A declaration or affidavit by Duffy is not attached to the motion to set aside the judgment. The record reflects a substitution of attorney was filed by Duffy in October 2015; however, this does not clarify Winthrop’s condition after June 2015, what finally motivated Duffy to seek new counsel, or why he delayed in seeking new counsel. Accordingly, due to the lack of evidentiary support, we find Duffy’s assertion to be unpersuasive.
B. MEDICAL RECORDS
Duffy contends the trial court erred by refusing to review Winthrop’s medical records. The record on appeal does not include a reporter’s transcript of the December 2 hearing on Duffy’s motion to set aside the judgment. The December 2 minute order does not reflect the court refused a request to review medical records. In Duffy’s Appellant’s Opening Brief, he provides no record citations in support of this contention. (Cal. Rules of Court, rule 8.204(a)(1)(C).) We have no means to know whether this alleged refusal occurred, because Duffy has not provided an adequate record. As a result, we conclude no error has been demonstrated. (See Rancho Santa Fe Assn. v. Dolan-King (2004) 115 Cal.App.4th 28, 46 [failure to provide an adequate record results in the issue being resolved against appellant].)
DISPOSITION
The judgment is affirmed. Respondent is awarded his costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


MILLER
J.

We concur:

HOLLENHORST
Acting P. J.

CODRINGTON
J.