Salcido v. Lopez

1

DENISE SALCIDO, Plaintiff and Respondent, v. ALBER LOPEZ et al., Defendants and Appellants.

D080911

California Court of Appeals, Fourth District, First Division

March 30, 2023

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Riverside County No PSC1909307, David M. Chapman, Judge. Affirmed.

Sobero Law Firm and Alberto Sobero for Defendants and Appellant.

S&S Injury Law Group and Ari M. Sharim for Plaintiff and Respondent.

DATO J.

This case underscores the deleterious consequences of default. Defendants who fail to answer a complaint within 30 days must provide a valid basis for setting aside the resulting default on statutory or equitable grounds. The trial court found that no such basis for relief had been shown by the defaulting defendants in this case. As a result, they now face judgments totaling millions of dollars in a case for which they had a potentially meritorious defense.

Courts prefer to hear cases on their merits. Setting the defaults aside here would have resulted in no prejudice to the plaintiff, as default judgment had not been entered. Nonetheless, on our record, the trial court did not abuse its discretion in denying defendants' motion to set aside the defaults. Defendants' proffers were too insubstantial to merit statutory or equitable relief. Specifically, Alber Lopez provided not even a colorable excuse for his neglect that would warrant a statutory set aside under section 473 subdivision (b) of the Code of Civil Procedure.^[1] And his parents Veronica and Omar Camara, who waited eight months before seeking help from the court, failed to show extrinsic mistake to support equitable relief. With defendants offering no other basis to reverse the resulting default judgment, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This case stems from a two-car collision in Indio in April 2019.^[2] Gladys Ponce was driving a tan-colored Toyota Corolla owned by her father Jose Gutierrez. She traveled northbound on a single-lane road called Sun Gold Street. Kaitlen Salcido sat in the rear passenger seat of Ponce's vehicle. Sun Gold ends in a T-intersection at Indio Boulevard, a four-lane east-west roadway. Traffic on Sun Gold is controlled by a stop sign.

As Ponce made a left turn to go westbound on Indio Boulevard her vehicle was broadsided by a car traveling eastbound. That car was driven by Alber Lopez. Kaitlen Salcido was transported to the hospital and later died of her injuries.

In December 2019, Kaitlen's mother Denise Salcido (Salcido) filed a wrongful death action against the two drivers and their parents (presumably as owners of the vehicles). This appeal solely concerns the case against Lopez and his parents, Veronica and Omar Camara, who are referred to collectively as "defendants." Omar Camara was personally served on January 5, 2020 and received substitute service for his wife Veronica. Lopez was personally served on February 18. Default was entered against the Camaras on February 19.

Due to the COVID-19 pandemic, the Riverside County Superior Court issued a series of emergency orders that prevented entry of default against Lopez. Lopez was served with a new court mandated form in August 2020, and the clerk's office noted in the register of actions that default could be entered against him on or after September 16. When Lopez failed to respond, a default was entered on September 16.

Lopez and the Camaras retained counsel. On October 23, they filed a motion to set aside the defaults. The motion was brought on statutory grounds under sections 473, subdivision (b) and 473.5. But it also cited Rappleyea v. Campbell (1994) 8 Cal.4th 975 (Rappleyea), a case that outlined the requirements for equitable relief. Along with their motion, defendants submitted a proposed answer and cross-complaint against Gladys Ponce and her father Jose Gutierrez, alleging they were solely responsible for the collision and loss of life. The proposed cross-complaint included as an exhibit the police collision report finding Ponce, the driver of Kaitlen's vehicle, at fault for the accident by failing to stop at the stop sign before turning or yield right-of-way.

Freshly retained, Alberto Sobero submitted a counsel declaration in support of defendants' set aside motion. He explained that he was retained on September 23 and called opposing counsel two days later in an effort to reach a stipulation to set aside the defaults. Opposing counsel told him to file a motion.

No declaration was submitted by the Camaras or Lopez explaining the reason for their default. But there were unsupported factual allegations listed in numbered paragraphs within the body of the set aside motion, under the caption "Statement of Facts." Defendants admitted being served. They stated the Camaras had limited English skills and went to the court for guidance. At the clerk's window, they were told that a case management conference had been set for May 20. They believed they could come to court on that date and present their case to a judge; they did not know they had to file an answer. When they went to court on May 20, thinking their case would be heard, they were told there would be no hearing. Default was entered against the Camaras on February 19.

The motion's "Statement of Facts" also offered details about Lopez. Lopez e-mailed opposing counsel on September 14 requesting a 30-day extension so he could seek an attorney. A printed copy of that e-mail request was attached to the motion. Default was entered against Lopez on September 16. It was only after retaining counsel on September 23 that he and his parents "learned the meaning of default for the first time." They approached opposing counsel seeking a stipulation requesting the defaults to be set aside and were advised to file a motion.

Salcido opposed the set aside motion. She argued that statutory relief was unavailable under section 473.5 because Lopez and the Camaras admitted to having actual notice. She further asserted that the Camaras could not seek relief under section 473, subdivision (b) because more than six months had passed since entry of default. Although Lopez did file within the six-month window, Salcido maintained that he could not claim mistake or excusable neglect where the summons form included a Spanish translation.^[3]An attorney declaration attached to Salcido's opposition provided dates of service and defaults.

After hearing arguments from counsel in a telephonic hearing that defendants did not attend, the court confirmed its tentative ruling denying the motion. Individually analyzing the defendants' entitlement to statutory relief, the court reasoned that section 473.5 had no application to the Camaras who "admittedly had notice." And because they filed outside the six-month window, they were likewise not entitled to statutory relief under section 473, subdivision (b). As to Lopez, the court did not find a sufficient showing of mistake to warrant relief under section 473, subdivision (b). Although Lopez requested a 30-day extension from opposing on September 14 to hire counsel, he had been on notice of the pendency of the case since the date of initial service in February. The court similarly concluded that none of the defendants had shown extrinsic fraud or mistake warranting equitable relief. "Defendants were not prevented from participating in the action and neither the Camaras nor Lopez have offered declarations that establish the facts upon which those arguments are based."

Based on Salcido's evidence alone, the court eventually entered a default judgment in her favor in October 2021. It granted Salcido's request to amend the judgment in November. On December 10, 2021, the court entered judgment awarding Salcido $1,913,457 in damages against the Camaras and Gutierrez, and $3,413,457 in damages against Lopez and Ponce. Defendants appealed.^[4]

DISCUSSION

Defendants challenge the judgment on only one ground. They claim the trial court erred in denying their motion to set aside the defaults. We address the claims as to Lopez and the Camaras separately and conclude that neither met even the minimal showing required for statutory or equitable relief.

A. The appeal is timely.

Salcido argues the appeal is untimely because it was not filed within 60 days of the trial court's order denying the set aside motion. That order was entered in December 2020, but the appeal was filed in November 2021. As defendants point out, however, the order denying the motion to vacate the default was not independently appealable. It was properly challenged on appeal from the ensuing default judgment. (Rappleyea, supra, 8 Cal.4th at p. 981.) Because defendants filed their notice of appeal within 60 days of the judgment, the appeal is timely.

B. The court did not abuse its discretion in denying the set aside motion.

1. Applicable legal principles

Section 473, subdivision (b) grants statutory authority to set aside a default that resulted from "mistake, inadvertence, surprise, or excusable neglect." Although only "neglect" is qualified by the adjective "excusable," "for relief on any or all of the stated grounds it must be shown that one's misconception was reasonable, or that it might have been the conduct of a reasonably prudent person under similar circumstances." (Shaddox v. Melcher (1969) 270 Cal.App.2d 598, 601.) Relief is available for an honest mistake of law, not where a party is ignorant of the law and negligent in failing to look it up. (Security Truck Line v. City of Monterey (1953) 117 Cal.App.2d 441, 445; see A&S Air Conditioning v. John J. Moore Co. (1960) 184 Cal.App.2d 617, 620.) Ordinary prudence is a prerequisite to relief under section 473, subdivision (b). (Elms v. Elms (1946) 72 Cal.App.2d 508, 513 (Elms).)

To obtain a...