Pursuant to CCP ? 473(b) ?[t]he court may, upon any terms as may be just, relieve a party . . . form a judgment . . . taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.?? The general underlying purpose of ? 473(b) is to promote the determination of actions on their merits.? Zamora v. Clayborn Contracting Group, Inc.(2002) 28 Cal.4th 249, 255-256.
In connection with ? 473, however,
??[i]t is the duty of every party desiring to resist an action or to participate in a judicial proceeding to take timely and adequate steps to retain counsel or to act in his own person to avoid an undesirable judgment. Unless in arranging for his defense he shows that he has exercised such reasonable diligence as a man of ordinary prudence usually bestows upon important business his motion for relief under section 473 will be denied. [Citation omitted.] Courts neither act as guardians for incompetent parties nor for those who are grossly careless of their own affairs. . . . The only occasion for the application of section 473 is where a party is unexpectedly placed in a situation to his injury without fault or negligence of his own and against which ordinary prudence could not have guarded.??? Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206; accord,Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1415.
The complaint was served on Defendant Bryan Dopp by personal service on 9/30/14.? Proof of Service was filed with the Court on 10/27/14.? Defendant, appearing in pro per, served an answer on Plaintiff, by mail, on 10/30/14.? The initial attempt was rejected but the answer was ultimately filed on 12/1/14.
After answering, Defendant did not exercise reasonable diligence in connection with this case.? A CMC was conducted on 2/5/15.? Defendant did not appear.? He was admonished to appear at the next CMC.? The CMC was held on 3/25/14.? Defendant, again, did not appear. ?(Defendant was given notice of both CMCs.)
An MSC was set for 9/4/15. Defendant, who had been given notice, did not appear at the 9/14/15 MSC.? An OSC re: Monetary/Terminating Sanctions against Defendant for his failure at the MSC was set forth 9/23/15. ?Defendant, who had been given notice, did not appear and his answer was stricken.? Plaintiff gave Defendant notice of the OSC rulings by mail.
Defendant?s default was taken on 12/8/15.? Defendant, who had been given notice, took no action.? Judgment in the amount of $386,218.29 was granted for Plaintiff and against Defendant on 1/4/16.? Notice of Entry of Judgment was served on 1/11/16.
Three weeks later, on 2/3/16, Defendant finally decided to participate in the action by filing a motion to vacate.? That motion was heard on 4/11/16.? The Court allowed Defendant to submit a new declaration with additional facts regarding his allegation that he had been misled by Plaintiff?s counsel which had resulted in his failure to appear before this Court.? Defendant was ordered to file and serve his supplemental declaration by 4/25/16 and the hearing was continued to 5/16/16.
Once again, Defendant did not comply with the orders of this Court.? He did not file supplemental materials until 5/12/16?more than two weeks after the date set by the Court.? Accordingly, the 5/16/16 hearing was continued to 6/20/16 so that Court could consider the late-filed papers and Plaintiff could file supplemental opposition if he wished.
Defendant?s late filed papers present the following ?evidence? in support of Defendant?s claim that he failed to appear because he was misled by Plaintiff:
- An 8/25/15 email from Plaintiff (personally) to Defendant which reads:? ?Please put everything on hold for now I will be in to u ch [sic].?
- A 9/3/15 email (10:33 a.m.) from Plaintiff?s counsel to Defendant reminding him of the MSC set for 9/4/15.
- A 9/3/15 email (10:25 pm) from Defendant to Plaintiff?s counsel which reads, in part:? ?I?m confused I thought when Ron said he was going to put this on hold it mean the Deposition and this meeting as well? . . if this is necessary I?ll do my best to make it tomorrow as early as possible but I?m assuming it will be afternoon.? Please call me when you get in to your office so we can make whatever arrangements necessary.?
- A 9/4/15 email (9:28 a.m.) from Plaintiff (personally) to Defendant stating: ?I have told them I won?t be there this morning.?
- A 9/4/15 text message from Plaintiff?s counsel to Defendant stating:? ?Mr. Dopp ? I am in the courtroom so I cannot call.? I assume you will not be here, correct?? Please confirm so I can tell the clerk.? I will call you when I get out?
- A 9/22/15 text message from Defendant to Plaintiff?s counsel asking Plaintiff?s counsel to submit the 8/25, 9/3 and 9/4 emails (referenced above) to the Court at the 9/23/15 OSC so that Defendant would not be sanctioned and informing counsel that Defendant would not be attending the hearing.
The email and text message ?evidence? submitted by Defendant (which is not properly authenticated) demonstrates that Defendant did not appear at the Mandatory Settlement Conference because he had been told by Plaintiff, personally, that everything would be ?on hold.?? Further, it demonstrates that Plaintiff had informed Defendant that he would also not be present at the MSC.
In addition, it demonstrates that Defendant made some attempt (however feeble) to explain his failure to appear at the MSC by asking Plaintiff?s counsel to submit the relevant communications to the Court.? Plaintiff?s counsel had, of course, no responsibility to submit documents on Defendant?s behalf but they had knowledge regarding his failure to attend the MSC and Plaintiff?s role in that which it appears they did not share with the Court during the 9/23 OSC at which the answer was stricken (leading to the default judgment).
Defendant has been extremely dilatory in connection with this matter.? He served an answer to Plaintiff?s complaint but did not take any further action to defend against the claims or comply with the orders of this Court.? Defendant has not ?exercised such reasonable diligence as a man of ordinary prudence usually bestows upon important business.?? Hearn v. Howard(2009) 177 Cal.App.4th 1193, 1206.? Thus, this Court is well within its rights to deny Defendant?s motion to vacate.
The Court is mindful, however, that Defendant resides out of state and is in pro per.? The Court also takes into account the ?evidence? provided by Defendant that his failure to attend the 9/4/15 MSC was due to inadvertence, surprise, or excusable neglect.? Thus, Defendant?s Motion to Vacate is GRANTED and Defendant?s answer is reinstated.? Pursuant to CCP ? 473(c)(1), the Court imposes a penalty of $1,000 upon Defendant, payable to Plaintiff within 30 days.
Defendant is admonished that he must comply with all future orders of this Court and must appear, in person or telephonically, at all conferences and other hearings set before this Court.
Defendant is ordered to give notice.