*1 S035028. Dec. [No. 1994.] RAPPLEYEA,
HAL Plaintiff and Respondent, al., KEN et Defendants and Appellants. CAMPBELL *3 Counsel Mount, E. S. K. Joan Havens Michael
Mendes Donald Fitzpatrick, & Patterson for Defendants Appellants. Plaintiff Respondent.
Mark S. Simonian for *4 Opinion a must be set aside and
MOSK, J. is whether default question —The We of discretion. conclude on the abuse reversed ground be, reverse the Court judgment. must and they Appeal’s Defendants, residents, served with summons Arizona were personally Defendants chose to propria and on November proceed 1990. complaint theirs, an old friend of had an Arizona lawyer, apparently persona on Court for information filing proce- the Los Superior telephone Angeles $89, fee that the was filing dures. clerk’s office told the staff lawyer’s The mail by sworn Defendants answered statement. according lawyer’s $89. The clerk’s office on or November enclosing Arizona about received the answer November 29. by $89 counsel. The
The clerk’s office misadvised defendants’ informal had for The fee filing fee was correct for defendant’s answer. correct a single was The error led a default $159. two defendants to answer clerk’s $200,240.39. defendants judgment against for error into a judgment $70 that transformed a procedural alchemy $200,000 had days Defendants complicated. more than is not particularly Proc., 412.20, subd. (Code Civ. to file their answer after were served. they § answer, been (a)(3).) filed first hence would have Their if when presented, Clerk’s Office received But when the Los Court timely. Angeles Superior check, the answer. $89 it returned rejected defendants’ answer and fee, back answer with correct Defendants sent their promptly answer filed on December 1990. was Meanwhile, was filed late. on days
Hence defendants’ answer eight so, 4,1990, December the first to do had possible day plaintiff applied clerk defendants. Plaintiff mailed a of his copy to enter default against The clerk entered defendants’ default that to defendants. application day. after The record leaves the course of events murky plaintiff applied (Both default. and defendants seek notice of judicial defendants’ plaintiff Code, (Evid. will various documents believe matters. they clarify §§ brief, (a).) denied.) In subd. are contends he plaintiff requests warned defendants must court for relief from repeatedly they apply default, but defendants no heed. Defendants in effect contend paid led them to miss the deadline to relief from default apply statutory by he would to such an It falsely saying is difficult to stipulate application. discern who said what to whom after the default. The record exactly scanty shrouds much of the case in mist. occurred,
Whatever communications defendants were parties agree naive to on themselves to rely their substantial interests in protect legal terms of involved. money about whether that naiveté They disagree compels not, stated, Naiveté does but two legal remedy. facts do. As key undisputed the clerk’s office misinformed defendants about the amount of due money for an answer two defendants. And as we misinformed explain, plaintiff defendants about the effect of the default. These facts legal *5 resulting govern decision, our rather than a view that defendants’ initial self- improvident entitles them to representation the balm of relief from default. particularly Procedural law cannot cast a on the or it will sympathetic eye unprepared, soon into a fragment rules. kaleidoscope shifting 24, 1991,
On May counsel plaintiff’s misdescribed Califor- diametrically defendants, nia law to these to inform them lay that “You not writing may claim inadvertence, that the default entered was taken against you through mistake, or (Italics added.) excusable To the Code neglect.” contrary, Civil Procedure (hereafter section 473 473) section that a court has provides dismissal, order, discretion to relieve a “from a party judgment, or other mistake, taken him or her proceeding against his or her inadvert- through ence, or excusable surprise, for this neglect. relief. . . shall be Application time, made within a months, reasonable in no case six after the exceeding dismissal, order, judgment, (The or was taken.” proceeding quoted language of section 473 is but not slightly different from that in effect in materially 1991.) letter, not, The effect of intended or was to advise these plaintiff’s Arizona defendants self-represented had forfeited California they legal rights that in fact they retained under section 473 before the statute’s six-month limitation expired. might October defendants learned a default soon judgment
Late in mailed a minute order to them announc- be them. against entered plaintiff against Camp- Court enter ing “[t]he (and others) if were sufficient.” The court’s com- bells [plaintiff’s] papers asserted warnings sounded an alarm that plaintiff’s munication apparently do, to set entry defendants moved aside clerk’s failed to because quickly default, on December 1991. motion appearing propria persona 15, 1992, on was denied January ground good was on argued then retained cause not been shown under section 473. Defendants had counsel, That was denied as who filed a motion for reconsideration. motion untimely.
Meanwhile, own Plaintiff was case was its setbacks. suffering plaintiff’s obtain a until after thereby unable to his damages prove Indeed, for, denied, on had moved been default. defendants “to show cause sanctions why several occasions the court ordered plaintiff each be failure file default At should not imposed your prove-up.” for relief from default was two after motion hearing, including scheduled filed, continued, But at one matter was at usually request. plaintiff’s or to failed obtain hearing May appear prove-up continuance, In $500 in sanctions his counsel. against and the court imposed but It was the latter did failed. try October 1991 plaintiff prove damages, defendants a default judgment that motivated court warn proceeding could be entered.
A was entered on 1992. Defendants January default judgment finally A divided Court affirmed. appealed. Appeal an of discretion if is little we would have found abuse There question within section governed by relief had been denied the six-month period merits, law of cases on their “any 473. Because the favors disposing *6 seeking 473 be resolved in favor of the party doubts in section must applying Therefore, relief is relief a trial court order denying from [citations]. more than an order trial on merits.” carefully scrutinized permitting 416, 227, (Elston (1985) 38 Cal.3d 233 695 Cal.Rptr. v. Turlock City [211 of 713]; (1993) 13 P.2d see also Miller v. Hermosa Beach City Cal.App.4th of 1118, 408].) 1136 Cal.Rptr.2d [17 cause was not shown good trial court in fact ruled on the ground was basis for that under 473 to set aside the default. The legal ruling section incorrect, of than entry because more six months had elapsed San default, (Aldrich v. hence relief under section 473 was unavailable. 735, 725, fn. 3 (1985) Co. 170 Valley Fernando Lumber Cal.App.3d [216
981 300].) But we cannot undo effect of the or the Cal.Rptr. ruling on the that the court have ensuing ground may section misapplied (See 473 as as other correct reason exists to sustain either act. long any legal 1, (1974) D’Amico v. Board Medical Examiners 11 Cal.3d 19 [112 786, 10].) 520 P.2d Cal.Rptr. Moreover, the order the motion to vacate the default is not denying 1459, (Jade (1989) independently Viguri K. v. 210 appealable. Cal.App.3d 1465 However, 907].) there is for the view that it Cal.Rptr. [258 authority be may reviewed on an from the as was appeal noticed here. judgment, (Winter 679, (1986) v. Rice 340].) 176 As Cal.Rptr. [222 does not challenge the order’s we reviewability, will review both entry default and the that followed it.
We therefore whether there is another inquire on which the ground court could have denied the motion to properly set aside the default. The is one of the question court’s If equitable the court could power. properly order, refuse to invoke that to vacate power its and the ruling ensuing judgment must be sustained. default,
After six months from a trial court entry still vacate may a default on even if equitable grounds (Olivera relief statutory is unavailable. 570, (1942) 564, v. Grace 19 Cal.2d 575-576 P.2d 1328].) 140 A.L.R. [122 We review a to a trial challenge court’s order a motion to denying vacate a default on as we would equitable grounds a decision under section 473: for an (In abuse of discretion. re (1980) Park Marriage 27 Cal.3d 337, 792, 882]; 612 P.2d Cal.Rptr. [165 see (1966) 63 Yankosky Weitz 849, 854, Cal.2d 620, P.2d Cal.Rptr. [48 judgment].) 700] [default
One ground for relief is equitable extrinsic mistake—a term broadly applied when circumstances extrinsic to the litigation unfairly cost a Park, on the party hearing (In merits. re Marriage supra, 342; Cal.3d at cf. p. In re Marriage (1984) 154 Cal.App.3d of Stevenot 1066-1067 Cal.Rptr. rule].) [202 “Extrinsic mistake [criticizing 116] found when other [among ... a mistake things] led a court to do what it never intended . (Kulchar . . .” v. Kulchar 1 Cal.3d 471-472 1368]; 462 P.2d 39 A.L.R.3d see Sullivan v. Lumsden 118 Cal. P. use of 777] was wrong map [referees’ “ extrinsic mistake and was available because ‘it is not a law, mistake of the or an is, inadvertent conclusion as to what the law but a *7 mistake or inadvertence in doing ”].) not intended to something be done.’
When a obtained, has been judgment relief be equitable may given in only exceptional circumstances. relief under section 473 is “[W]hen 982
available, is in favor of strong granting there a public policy his or her in court. this day Beyond period the allowing requesting party of of finality only is in favor the strong public judgments there a policy (In re should relief be granted.” Marriage in circumstances exceptional 1071; Stevenot, (1988) v. Maxwell 154 at see Aheroni supra, Cal.App.3d p. 284, 369].) Cal.Rptr. 205 291 Cal.App.3d [252 created to the one has foregoing policy, appellate further Apparently to for relief from default on basis a test stringent qualify equitable one “To set aside & based extrinsic mistake upon extrinsic mistake. First, demonstrate that must three elements. the defaulted must satisfy party ], set aside the default it has a case. to seeking meritorious party Second[ a to the excuse not defense satisfactory must articulate presenting ], must demonstrate moving diligence action. original party Last[ (Stiles Wallis set aside the default once . . . discovered.” v. to seeking 1143, 377], added.) 1147-1148 italics 147 Cal.App.3d In re Marriage formula of Stiles was followed by stringent three-part Stevenot, 1071, 154 an extrinsic fraud case. at supra, Cal.App.3d page Maxwell, unlike v.
But this case is Aheroni supra, Cal.App.3d 1051, Stevenot, In or Stiles v. Marriage re supra, Cal.App.3d Wallis, leaving because the judgments supra, Cal.App.3d policy Plaintiff did not final is not here as it was in those decisions. implicated 29, 1992, until which time defendants obtain default judgment January meantime, for, denied, relief default. In the had moved and been Thus, scant to obtaining judgment. had shown interest plaintiff extent relief is based on an understandable disfavoring the policy equitable distaste for the forfeiture of a which vested personal property judgment, 3; Code, (Civ. Rys. T. Co. Oakland Anglo-California subd. § in this 452]), the basis is weaker Cal. 468-469 P. policy’s Indeed, before us suggests prejudice case. record strongly succeeded, motion, if that had from defendants’ motion been nil. virtually decide, however,
We not whether a test much different from need Stevenot, articulated in at supra, Cal.App.3d page Marriage of 1147-1148, Wallis, Stiles v. at supra, applies pages has not been entered. relief when a default requests odd facts entitle Even under that test this case’s stringent three-pronged defendants relief. for failing
We examine defendants have a excuse satisfactory first whether minds, as this is the same answer in the action. To our original timely *8 here, whether an mistake relevant “a extrinsic occurred—as whether asking Kulchar, (Kulchar led a court it never . . mistake to do what intended . v. 471-472.) 1 Cal.3d at We the clerk’s conclude that misunderstand- supra, pp. of the number of defendants constituted an answering extrinsic mistake. ing court never have the fee intended to defendants send to a sole applicable default, defendant and but that was the effect of the clerk’s minis- thereby action. terial
Defendants’ similar to situation is that of the defendant Baske v. Burke who, when served with a Cal.App.3d 794] summons a valuable partition sale of wrote complaint painting, court clerk to the at least five times. “These communications were placed the records but never filed as a or answer response to [were] [the] written to ‘do complaint—despite what was needed request [the defendant’s] file,’ an offer to fees needed’ and claim of nA ‘pay [to] right [her] [to] interest’ in the (Id. at painting.” p. fourth set brackets in original.) facts, Burke, On those v. Baske supra, 125 Cal.App.3d properly affirmed an order aside equitable setting the of default on entry the ground error, of extrinsic mistake caused clerical though even almost a year had half from the elapsed entry default. “The doctrine of relief in equity from mistake has the where mistake is that of the clerk of applied the court.” (Id. 44.) at p.
nextWe examine the whether defense has merit. a verified Ordinarily Wallis, answer a complaint’s allegations (Stiles suffices to show merit. supra, 1148.) verified, at Cal.App.3d here p. answer was not but Moreover, neither was admit, did complaint. answer deny, or other- wise respond And the allegations. lawyer Arizona who informally aided defendants declared under oath that he believed “these Defendants (and very good certainly defense to justiciable) the Plaintiff’s claim.” On facts, the combined of these strength we believe defendants have sufficiently shown merit.
The final prong Wallis, the stringent test set forth in three-part Stiles v. supra, at Cal.App.3d is whether page defendants tried to diligently set aside default once discovered.
“The greater the prejudice responding party, likely more it is that the court will determine that defenses such as or equitable laches to the estoppel apply (In vacate a request valid re judgment.” Marriage of Stevenot, supra, 1071.) at three Of the items a p. defendant default, must show to win relief from diligence is the most *9 984 If heightened prejudice strengthens intertwined with prejudice.
inextricably weaken it. so must reduced prejudice diligence, the burden proving record, view, we believe defendants have this given Under that shown diligence. sufficiently less if has not been entered obviously judgment to a
Prejudice plaintiff Therefore, relief. we believe the diligence when a defendant seeks equitable it in the here that would importance cannot assume simply prong a reversing the trial court would be case wherein ordinary right by granting equitable divesting plaintiff property Indeed, that if he himself did default. the court kept admonishing plaintiff sanctioned, and to he would be once not more diligently prove damages, try at a This counsel was sanctioned for failing appear prove-up hearing. his obtain an claim make of might eagerness indifference belies any had forfeited And told defendants they early plaintiff incorrectly judgment. facts weaken their to seek relief. These unusual statutory greatly legal right lower the burden on assertion of and correspondingly any possible prejudice, defendants of showing diligence. standard, defendants were not derelict callously
Under this reduced sure, did not move for relief from to set aside the default. To be they seeking ensued; 9, 1991, after this default until December more than year litigation asserts, evidence, he defend- with some that warned and plaintiff confirming However, in default. the evidence that before October 1991 ants were they defendants understood the to them consequences being legal personally default, defendants, in a case with 12 other named and 20 Doe is confined to the summons. When in October on the face of language boilerplate acted the court told defendants soon face a default judgment, they they might We believe defendants acted diligently enough satisfy quickly. relief. requirement test, we conclude that the satisfied all three of the
Having prongs stringent reversed. clerk’s of default must be set aside and the default judgment entry incor- We draw our conclusion The clerk’s error and narrowly. plaintiff’s rect statement of the law us that the court abused its together persuade discretion when it denied defendants’ motion. These rare events should not $200,240.39 combine to make defendants suffer a without a on the merits. hearing to, however,
As alluded we make clear that mere self-representation is not a lenient when a ground particular treatment. exceptionally Except otherwise, rule the rules of civil must apply equally provides procedure counsel who attorney and those represented forgo representation. parties 611, 619, Court (See Superior Lawrence v. fn. Cal.App.3d view, 748].) To the extent it articulates a Pete v. Hender contrary P.2d son 45 A.L.R.2d should 58] *10 ever, if be followed. A or very doctrine rarely, generally requiring permitting would treatment who themselves lead to a exceptional parties represent courts, in the be unfair to other trial would to parties quagmire our decision we have litigation. reaching considered Although incidentally in defendants’ on parties reasonably whether relied position advice from the clerk’s office and whether would have understood the they default, of a our meaning focus is on the clerk’s and incorrect plaintiff’s rather advice than on defendants’ ill-advised self-representation. The Court of reversed is with directions to Appeal’s judgment reverse the to judgment and instruct the trial court to aside the set entry default.
Kennard, J., Arabian, J., J., and George, concurred. ARABIAN, I concur in the Justice Mosk. fully opinion by J.
Defendants, an out-of-state who couple chose them- unwisely represent selves, timely their presented answer for But in line filing. a story worthy novel, Franz led, Kafka an $70 innocent at error the outset after a series of misadventures, $200,000 to a default judgment. Defendants should have moved to set aside the default but immediately, chose to unwisely continue however, with negotiating Their plaintiff’s lawyer. before delay, pales of plaintiff, who faced orders show repeated cause sanctions why should be not for his own imposed before he delays his finally proved damages after had and been denied requested I find it defendants relief from default. insidious his plaintiff’s attorney wrote first letter “get to defend- tough” ants a scant few before the six-month days of Code of Civil period Procedure section 473 expired. Coincidence? Or was plaintiff stringing defendants until along the six months had passed? is correct majority that special privileges cannot be shown litigants
who choose to represent themselves. But not they should be penalized because this, they represent themselves. In extreme cases like legal techni- must, calities and under our statutes be may, by tempered justice. Justice Johnson stated in dissent in the Court of that these Appeal defend- ants “were at since special resided in another disadvantage they state. . . . Time limits and technicalities procedural lacked the they to know expertise were about turned against at every stage [them] proceedings. “Their counsel, adversary, represented took advantage [defendants’] lack of counsel and their ignorance of California to tie procedure them in a belief these into lulled alternately his lawyer [defendants] knots. He and and then misin- to vacate the default would sign stipulation [plaintiff] When motion to vacate the default. no for a grounds had they formed them could and should seek from the court they received notice they ultimately Civil Procedure default, under Code of was too late to vacate the it proceed under court denied relief the trial section In a cursory proceeding, 473. them realized what had happened when they finally .... Then equity them, late. be too it was found to to represent and found a California lawyer over. game no reconsideration. Sorry, allows, demands, in this relief from default and the law “. . . Equity case.”
I agree. J., concurred.
George, to rescue these undertake BAXTER, J. majority dissent. respectfully —I the In so doing, of their own procrastination. from the litigants consequences to seek review in others encourage in the law create majority uncertainty Court of decided the by Appeal of decisions which are correctly this court Court, 29(a).)1 Rules of rule (Cal. issue of law. no important present which a of error and omission placed While in detail reciting litany debtors, the fail of majority defendants in the unfortunate judgment position of is whether the Court issue in this case. That question to the sole identify in did not abuse its discretion that the trial court erred Appeal holding Moreover, the to defendants. It did not. to refusing grant equitable review of such the rule Court of applied governing appellate Appeal properly fail even to a rule which the majority trial court rulings, discretionary to have overlooked let alone Since the majority appear acknowledge, apply. law, it in that the bench it is to restate the hope the applicable appropriate of its this aberrational decision as a repudiation and bar will not construe force. Civil the evidence in of a of
“In reviewing support [Code Procedure] motion, inferences to and reasonable section 473 we extend all legitimate a rests largely of such motion disposition uphold judgment. court, on appeal decision will not be disturbed discretion of the trial its Appeal 29(a): Supreme of will be 1Rule “Review Court of a decision of a Court (1) uniformity the settlement of appears necessary to secure of decision or ordered where it law; (2) jurisdiction of the important Appeal the Court of was questions of where without cause; where, reason, (3) of the Court of disqualification or other decision or because of required majority qualified Appeal judges.” lacks the concurrence of the
987 a has been clear abuse discretion. unless there Although definition precise difficult, it test accepted is that the of abuse of generally appropriate reason, or is whether not the trial court exceeded the bounds of all discretion before it being of the circumstances considered. We have said [Citations.] facts, can that when two or more inferences be deduced from the reasonably to substitute the trial reviewing power lacks its deductions those (In re 590, Marriage Connolly court.” (1979) Cal.3d [153 597-598 Brattain added; see also Shamblin v. 911], P.2d italics Cal.Rptr. Ayala 339]; (1988) v. Cal.3d P.2d 478-479 Cal.Rptr. [243 Rental, & Southwest Inc. 44-45 Leasing Cal.App.4th MJM, Inc. Tootoo 637]; 603-604 Cal.Rptr.2d 100].)2 The Court of that on a section 473 motion or Appeal, recognizing ruling on a motion addressed of the court aside set power or court, default within lies the sound discretion of the judgment trial refrained from its properly for that the trial simply substituting court. The fail to the manner in majority which Court of explain Appeal erred in so. Instead it doing do which neither the Court of proceeds nor this court do. has Appeal may It substituted its of the trial court. I find no in the for this explanation majority failure opinion *12 acknowledge or well-established apply law.
Nor do I find an of the relevance of of explanation the many evidentiary facts recited and relied on the by erroneous advice majority. given defendants the clerk the fee by is relevant regarding insofar as it filing only establishes that the default taken was as a result of a mistake defendants by statutory 2All references are to the of Code Civil Procedure. scope appellate of review is broader in no in cases such as this which trial the court ruled on the basis conflicting of holding evidentiary hearing. affidavits without an “In the fact, of involving consideration an made question order on affidavits the decision of a the appellate by court is bound the same rule testimony presented as where oral is for review. affidavits, When [Citations.] an issue is tried on the rule on appeal that those affidavits favoring the prevailing party contention the only establish not the facts stated therein but therefrom, also all reasonably facts which may be inferred and where there is a substantial stated, conflict in the facts by determination of the controverted the facts trial court will not (Griffith be Diego College disturbed.” (1955) Co. v. San 45 Women Cal.2d 508 [289 1349].) P.2d applies A.L.R.2d This rule rulings to review of on section 473 motions. (Lynch Spilman 636]; 67 Cal.2d Cal.Rptr. 431 P.2d Outdoor Imports, Inc. v. 593].) reviewing If Stanoff court were free to reject court, presumably by inferences drawn the trial it would not be deciding if the trial clearly court its abused discretion in denying relief. Instead it would substitute its by deciding that of the trial court the merits of the 473 motion Any ruling itself. on such motion then subject appeal be on not abuse of discretion grounds, simply but on the appellate an invitation to disagree court to with the trial court on strength of the evidence. Thus, to the in file a answer timely complaint. in their failure to that resulted relief from immediately seeking had a basis for defendants December 1990 the clerk’s action. relevance of only 473. That is under section relief on which regarding grounds counsel plaintiff’s The statement misled if defendants were only is relevant sought be might from default a timely to file to defendants’ failure and that fact contributed the statement was statement an inference that the motion. The record permits section to be to, have the advice defendants would not understood not directed basis of to, from default on the could seek relief directed whether they Instead, been it however. appears fee filing misunderstanding, months was then five in relief for what directed to defendants’ delay seeking entered, notwithstanding that the default had been from the time learned they would have to seek judicial counsel that they advice from plaintiff’s inference, this court could have drawn from that action.3 If the trial that it did so. must assume have concluded that defendants’ delay the trial court may
Alternatively, entered, had been a delay after that default learning five months not counsel that could they were occurred advised they by plaintiff’s before inadvertence, basis was itself a sufficient mistake or excusable neglect, claim does not a litigant delay the motion. Section 473 permit on which to deny Rather, it that the relief from default. requires for six months seeking months, time, in six exceeding no case motion be made “within a reasonable “Defendant is the outside limit. (Ibid.) . . .” Six months after the judgment. disclosed, cited, case which nor research any has not has independent therefor, where, there has in making application set aside a default court has months after full three been an delay anything approaching unexplained 24, 1991, *13 May in letter to defendants that plaintiff’s in counsel stated 3The context which inadvertence, through against you taken they “may not claim that the default entered was mistake, implicit that this neglect” fully justifies the trial court’s conclusion or excusable regard availability of relief. The statement not mislead defendants with to the statement did case, his past counsel’s efforts to settle was made at the end of the letter which recited answer, provide untimely unkept promises to informa their discussion with them about codefendant, tion, keep. they failed to they, promises like a had made and counsel’s belief that given prior notice of default and “You have been actual notice to and after He then stated: for the any timely appearance or plaintiff everything pleading has done reasonable to obtain months,” from default was grounds last six after which the remark about the on which relief simply counsel’s permissible inference that the statement was available was made. It is a entered, time, default had been any at that five months after the assessment that claim made inadvertence, mistake, neglect would be or excusable that the default was taken as a result counsel, and history plaintiff, between his light unreasonable in of the communications defendants. the default would not grounds on the stated to set aside Counsel’s a motion assessment that court denied the motion proved to be accurate. trial ultimately be found meritorious “good because cause was not shown.” . . of the of the default. . . . .While the knowledge entry statutory [U six-month limitation is the ‘standard or criterion all cases’ as [citations] event, the measure of the court’s relief in jurisdiction grant any time’ test stands as an ‘reasonable consideration and independent any situation, determination, its within the maximum six-month given period, ” the circumstances of that ‘depends upon case.’ particular (Benjamin Dalmo Co. 31 Cal.2d 593].) P.2d Mfg. 529-530 [190 assert that the record is majority “murky” the events after regarding ante, to have defendants’ default entered. at plaintiff applied (Maj. opn., p. 979.) It is so because the fail to that the trial court only majority made imply all on evidence its findings disputed When one necessary support ruling. so, evidence, does there is no murk. Based on undisputed assuming the trial court made all the on findings facts and drew all reasonable disputed inferences from the facts that would its the record shows the support ruling, following:
Defendants were notified mail of the by default. That request entry notice was given them to the prior of the filing were request. They informed when their answer to the untimely was filed that their complaint default had been entered. Exhibits attached to their motion to set aside the default confirm that defendants were aware in December that their default had been entered. were advised counsel They both plaintiff’s that, before and after the default was entered even with a motion stipulations, to set aside the default would have to be made. Plaintiff himself gave defendants the same advice. Neither nor his counsel represented defendants that he default, to set aside the stipulate however. Finally, counsel plaintiff’s did not receive a of a to set aside the copy stipulation default from defendants until November 11 months after entry default, and that document was signed Ken only by Campbell.
As the majority defendants’ acknowledge, motion was not made within six months and the sole source of to set aside the lies in authority the trial court’s to set aside the power on grounds “extrinsic factors have prevented one to the party litigation presenting his or her (In case.” re Marriage Park 27 Cal.3d 342 [165 Here, however, 882].) P.2d since defendants imme- knew *14 taken, that their default diately had been the is not whether an question extrinsic factor them from prevented their answer the filing litigating merits, but whether extrinsic any factor led to their failure to file a reason- section ably 473 motion. timely The no evidence which the majority identify trial court could not have reasonably disbelieved or as a basis for rejected concluding that relief from default was warranted. The record establishes
990 taken defendants were aware default had been that any question beyond they entered them against that if were to avoid they having judgment note The evidence majority have to seek relief default. disputed would that would plaintiff stipulate led defendants believe plaintiff on whether of relief, not the trial court’s implicit but the do accept rejection majority done relief. The trial court could reasonably as a basis for that evidence so, that that evidence he had told defendants repeatedly as offered made, have to be but defendants for relief from an application Court of nothing a reasonable time. The found Appeal failed to within apply that the trial court disturbing finding in the record implied justify false not lulled defendants into a sense of security actions had plaintiff’s action. offer them from thereby prevented participating majority the trial or its for that of substituting no explanation authority court. court believed
It is irrelevant for these that the trial purposes mistakenly that it was on a motion made to section 473. Had the motion pursuant ruling motion, a be no basis for a conclusion been section 473 there would timely the trial or for that the court erred in that evidence rejecting holding denying court abused its discretion the section 473 motion. It follows of the there is no basis in the same evidence for an exercise court’s equitable A make to set aside the relief must seeking equitable power judgment. party even than that for relief 473 stronger an under section showing necessary 369]), (Aheroni v. Maxwell Cal.Rptr. which these defendants did not do. There are no extrinsic that the trial facts did not consider when it denied what it believed was a section motion.
The law relief on of extrinsic discussed in grounds fraud governing Kulchar v. 1 Cal.3d Kulchar 462 P.2d 1368], A.L.R.3d on which the has no here. application majority rely, Equi relief on of extrinsic mistake is table fraud or not a substitute grounds or time section relief. When fraud mistake is discovered within the limits established section relief is available to that section. pursuant by This not a related to the policy question importance finality judg ment, as the has time established the majority suggest. Legislature within which relief on mistake be who is grounds may sought by party aware of the The failure relief on basis mistake. to seek that a timely time of forecloses the relief unless necessarily availability equitable of mistake or fraud or it discovery other circumstances made impossible Deeming for the to make a section 473. party timely motion under motion one for relief does time within which not expand for such motion should made of the party grounds be who is aware *15 must demonstrate to seek relief diligence relief. party attempting (See, under section 473. v. Bank e.g., Higley Downey 365].) of inexcusable Cal.Rptr. Concepts neglect motions relief. The court and laches to must con apply seeking equitable of a failure to sider the reasonableness seek within the party’s statutory Park, (See 345.) time limit. In re 27 Cal.3d Marriage supra, Since failed to their failure to make a motion under justify section plaintiffs timely 473, the trial court abused its discretion had it treated their motion as one for relief and it. equitable granted
Nor is lack of to the prejudice determinative.4 This court opposing party has no to create an alternative simply power which makes relief remedy available to who have persons of the facts on which relief knowledge bemay under section 473 but sought fail to with the inexcusably comply statutory time limit. Lack of to the other prejudice does not party “automatically enable one who fails to make his motion within six months of the default to set aside the to judgment by of the appealing court. To equity powers hold otherwise would encourage to wait until the litigants six-month period before elapses moving set a default aside. To the extent judgment that the court’s equity relief differs from its power grant under section power narrower, must be equity power (Weitz considered not wider.” v. Yanko- sky Cal.2d 700], P.2d italics omitted.)
There is no basis this record for a conclusion that the trial court abused its discretion in denying defendants’ motion to set aside their default or for holding defendants are entitled to relief. The Court of Appeal did not err in affirming the trial court. I would affirm the the Court of Appeal.
Lucas, J., J., C. and Werdegar, concurred. 4In fact the trial may well have prejudice concluded that there was plaintiff from delay. majority’s assertion prejudice that the plaintiff granting the belated motion for relief from ante, “virtually default was speculative (maj. 982), nil” is opn., p. at and overlooks the showing prejudice made opposition who asserted in to the motion that two other defendants had bankruptcy proceedings initiated which affected his ability witnesses, evidence, to obtain testimony, needed and that other witnesses evidence longer were no available to him as a result elapsed. of the time that had