Filed 12/10/13 Geiserman v. Tudor CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



MARC GEISERMAN, et al.,                                             D061679

         Plaintiffs and Respondents,

         v.                                                         (Super. Ct. No. 37-2009-00064794-
                                                                     CU-BC-EC)
DOUG D. TUDOR,

         Defendant and Appellant.


         APPEAL from an order and judgment of the Superior Court of San Diego County,

Joel R. Wohlfeil, Judge. Affirmed.

         Doug D. Tudor, in pro. per., for Defendant and Appellant.

         Goode, Hemme & Peterson, Thomas Goode, and John Malki, for Plaintiffs and

Respondents.

         In this business litigation, defendant Doug D. Tudor appeals from an order

denying his motion to vacate a default and default judgment in favor of plaintiffs and
respondents Marc Geiserman,1 Michael R. Marquardt, and Sheri D. Marquardt, as

Trustees, etc. (plaintiffs).

       On appeal, Tudor contends the trial court erred in denying his motion to set aside

the default and default judgment under Code of Civil Procedure section 473.2 Tudor

argues the trial court erred by applying the wrong legal standard in striking his answer

and it abused its discretion in imposing terminating sanctions.

       We conclude the trial court did not err or abuse its discretion in denying the

motion or in entering judgment. We affirm.

                    FACTUAL AND PROCEDURAL BACKGROUND

                                 A. Pleadings and Answer

       In March 2009, plaintiffs sued Tudor and the related corporate defendants (Club

Cohiba etc.) for damages and dissolution of those limited liability companies. This

dispute arose out of plaintiffs' investments in the limited liability companies.

       In March 2009, defendants were served with the complaint.3 All defendants filed

a certificate of inability to respond. On May 14, 2009, the court granted them an


1     During the pendency of the litigation, plaintiff Robert Geiserman died, and his son
Marc Geiserman was substituted in his place as plaintiff representing his interests.

2     All further statutory references are to the Code of Civil Procedure unless
otherwise noted.

3     Although Tudor failed to include in the record on appeal a copy of the original
complaint and answer, we presume the trial court's order is supported by the record. (See
Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.) However, other
documents inadvertently omitted from the clerk's transcript have been added by
augmentation. These include the memorandum of points and authorities in support of
                                              2
extension of time to respond until May 22, 2009 and ordered that a request for default

previously submitted by plaintiffs would be held until May 22, 2009, but if defendants

failed to respond by that time, the default would be entered.

       On May 22, 2009, defendants filed an answer in the form of one pleading for all

defendants. However, the court accepted the answer as to defendant Tudor only.4

       In September 2009, the judge continued the case management conference (CMC)

to October 26, 2009. At that hearing, Tudor failed to appear, but was allowed a

telephonic appearance. Trial was set for April 16, 2010.

                     B. Trial Management Hearings as of May 2010

       This record shows that in May 2010, Tudor's defense counsel was relieved, while

case management hearings were still going on. In pro. per., Tudor filed an untimely

brief, and failed to appear at the scheduled CMC and order to show cause (OSC) hearings

on June 25, 2010. On that date, another attorney made a special appearance for him, and

informed the court of Tudor's incarceration on another matter. The court vacated the trial

date and continued the CMC and OSC to September 3, 2010.

       On September 3, 2010, Tudor did not appear at the CMC and OSC. However,

Tudor's friend Patrick Maloy appeared and informed the court of Tudor's continued




Tudor's motion to set aside default and default judgment and the supporting declarations
of attorney Janis Turner, Tudor, and his friend Patrick Maloy, and the opposition papers.

4     No issues have been raised on appeal to challenge the rulings about the corporate
defendants. Their answer was stricken twice, in 2009 and 2010, and their default entered
on October 27, 2010 and their default judgment entered on October 11, 2011.
                                             3
incarceration and requested a continuance on his behalf. The court continued the CMC

and OSC to October 14, 2010.

       On October 14, 2010, Tudor did not appear at the CMC and OSC. Again, Tudor's

friend appeared and informed the court of his continued incarceration. The court issued

another OSC why Tudor's answer should not be stricken and set it for hearing on

December 3, 2010, on the continued CMC date.

       On December 3, 2010, Tudor failed to appear at the CMC and OSC. However, the

court referenced a letter it had received ex parte from Tudor, requesting another

continuance and indicating his incarceration was near resolution.5 The court again

continued the CMC and OSC to February 4, 2011, based on Tudor's representations.

         C. Order Striking Answer and Entry of Default and Default Judgment

       On February 4, 2011, Tudor again failed to appear at the CMC and OSC, and the

court issued an order on February 9, 2011, striking Tudor's answer.

       On February 14, 2011, the clerk entered Tudor's default. On August 19, 2011,

plaintiffs filed a request for court judgment. On October 11, 2011, the court ordered

judgment against all defendants for over $472,000.

                     D. Motion for Relief From Default and Ruling

       On August 28, 2011, Tudor retained attorney Janis Turner to challenge the

defaults. On November 18, 2011, she filed Tudor's motion to set aside the default and



5       As shown in his declaration in opposition to the motion, Tudor wrote other letters
to the court dated January 28, 2011 and February 8, 2011. They are not file stamped and
were not treated as pleadings by the court.
                                             4
default judgment. At the motion hearing on December 9, 2011, the court denied the

motions and explained its reasoning (to be set forth post).

                                        DISCUSSION

       Tudor first contends the trial court abused its discretion in denying him relief from

default under section 473. He claims he adequately showed "mistake, inadvertence,

[surprise], or excusable neglect." (§ 473, subd. (b).) Tudor next contends the court

applied the wrong legal standard in denying his motion to set aside the default judgment.

                                             I

      MOTION FOR RELIEF FROM DEFAULT ENTERED FEBRUARY 14, 2011

       Tudor argues the trial court abused its discretion in denying his motion to set aside

the default that was entered after his answer was stricken. We disagree. In denying

Tudor's section 473 motion to set aside this court-imposed default, the court found that

Tudor's motion was untimely. However, Tudor has failed to address the untimeliness of

his motion in his appellate briefing.

       A party who seeks discretionary relief under section 473 from entry of default or

default judgment based on mistake, inadvertence, surprise, or excusable neglect, must

bring the motion for relief "within a reasonable time" but "in no case exceeding six

months" after the entry of default. (§ 473, subd. (b), italics added; Rutan v. Summit

Sports, Inc. (1985) 173 Cal.App.3d 965, 970.) When such relief is sought, the limitation

period runs from the date of the clerk's entry of default, and not from the date of entry of

the default judgment, because "vacation of the judgment alone ordinarily would

constitute an idle act; if the judgment were vacated the default would remain intact and

                                             5
permit immediate entry of another judgment giving the plaintiff the relief to which his

complaint entitles him." (Ibid.)

      Thus, even if a defendant moves for relief within six months after the default

judgment has been entered, if the motion is made more than six months after the

underlying default was entered, it is too late. (Koski v. U-Haul (1963) 212 Cal.App.2d

640, 642-643; Monica v. Oliveira (1956) 147 Cal.App.2d 275, 276.) "[C]ourts have

interpreted the clerk's entry of default as a 'proceeding' taken against the party, which

marks the beginning of the period, even though the judgment on the default is not entered

until later." (Garcia v. Gallo (1959) 176 Cal.App.2d 658, 669.)

      As already discussed, Tudor's answer was stricken on February 4, 2011, and his

default was entered on February 14, 2011. On November 18, 2011, Tudor brought a

motion for relief under section 473, nine months after the entry of default, well beyond

the six-month jurisdictional limit set forth in section 473, subdivision (b). Because

Tudor failed to bring his motion for relief from default within the jurisdictional six-

month time limit, his motion was untimely. (Carrasco v. Craft (1985) 164 Cal.App.3d

796, 805.) The court was justified in finding the motion untimely and in leaving the

default in place, both as a matter of statutory interpretation and as an exercise of

discretion.

                                             II

  DISCRETIONARY RELIEF FROM DEFAULT JUDGMENT UNDER SECTION 473

      Although we could dispose of this appeal on the ground of untimeliness of the

motion for relief from default, as discussed above, we acknowledge that Tudor has not

                                              6
directly addressed that issue, and that each party has discussed the merits of an appeal

from the default judgment itself. Accordingly, we exercise our discretion to decide the

closely related question of the propriety of the default judgment entered.

                                    A. Issues Presented

       Tudor contends his motion to set aside the default judgment was erroneously

denied, because he showed there was mistake, inadvertence, or excusable neglect.

(§ 473, subd. (b).) Tudor relies on two instances of attorney fault to claim mistake under

section 473.

       Tudor further contends that the trial court abused its discretion in denying his

motion to set aside the default judgment when the court applied a negligence standard to

issue "terminating sanctions." (§ 2023.030.) He argues there was no evidence he

intentionally or willfully ignored a court order. (Collisson & Kaplan v. Hartunian

(1994) 21 Cal.App.4th 1611, 1617-1618 [court imposed sanctions because the defendant

intentionally and willfully avoided and ignored a court discovery order by giving evasive

and incomplete answers].) Based on his former incarceration, Tudor also contends he

was denied due process of law when the trial court granted default judgment for

damages.

                                  B. Standard of Review

       A trial court's ruling on a section 473 motion to set aside a default judgment is

reviewed for abuse of discretion. The outcome of such a motion " 'rests almost entirely

in the discretion of the court below, and appellate tribunals will rarely interfere, and

never unless it clearly appears that there has been a plain abuse of discretion.'

                                              7
[Citations.]" (City of Ontario v. Superior Court (1970) 2 Cal.3d 335, 347.) "Discretion

is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the

circumstances before it being considered." (Denham v. Superior Court (1970) 2 Cal.3d

557, 566.)

       We acknowledge that the trial court's discretion in ruling on such motions is

limited by the public policy that favors trials on the merits, and that "very slight evidence

is required to justify a trial court's order setting aside a default." (Shamblin v. Brattain

(1988) 44 Cal.3d 474, 478.) Thus, " 'a trial court order denying relief is scrutinized more

carefully than an order permitting trial on the merits.' [Citations.]" (Rappleyea v.

Campbell (1994) 8 Cal.4th 975, 980.)

                         C. Section 473 Criteria and Application

       Section 473 permits a trial court to grant relief from a default caused by a party's

"mistake, inadvertence, surprise, or excusable neglect." (§ 473, subd. (b).) To obtain

relief, the party must show his or her neglect or mistake was "excusable," e.g., the acts of

a reasonably prudent person under the same circumstances. (Hearn v. Howard (2009)

177 Cal.App.4th 1193, 1206.)

       Tudor claims the history of the case shows that attorney Roger Heaton made a

mistake by attempting to represent him when Heaton had a conflict of interest in the case.

Although Heaton had agreed to appear for Tudor at the December 3, 2010 OSC and CMC

hearing, he withdrew when he realized he had a conflict of interest. Tudor claims the

second instance of mistake occurred when attorney Janis Turner agreed to meet Tudor

while he was in jail in the fall of 2010, but she was prevented from seeing Tudor and was

                                              8
thus unable to have a retainer agreement signed. Later, she filed this motion on his

behalf.6

       Here, the acts of the two attorneys do not provide Tudor with excuses that are

acceptable, in light of the relevant sequence of events before the underlying February 14,

2011 default was imposed, leading to the default judgment. While Heaton had a conflict

of interest and was unable to represent Tudor at the December 3, 2010 OSC and CMC

hearing, the court nevertheless considered Tudor's letter explaining his circumstances and

granted a continuance of the OSC and CMC based on Tudor's representations. In

addition, Turner did not formally represent Tudor at the time she was denied access to the

jail and thus she could not have been held responsible for Tudor's inaction.

       Further, there was a longstanding history of inexcusable neglect on the part of

Tudor. The procedural history of this case, from September 2009 through October 2011,

indicates that the court provided ample opportunity for Tudor to appear at the OSC and

CMC hearings. While Tudor was incarcerated during a portion of the litigation, he

received multiple continuances to respond. Tudor was released from jail on March 28,

2011 and thereafter did not do anything to address his default status in a timely way.

Based upon these facts, the court acted well within its discretion in denying Tudor's

motion for relief from judgment, since no mistake, inadvertence, surprise or excusable

neglect justifying relief was shown.



6    In August 2011, six months after default was entered against Tudor, Turner
became attorney of record for Tudor for purposes of bringing the motion filed in
November and heard in December 2011.
                                             9
       Further, Tudor's reliance on the willfulness standard is inapposite here, because

section 2023.030 applies to discovery sanctions imposed for misuse of the discovery

process, such as terminating sanctions. (§ 2023.030, subd. (d).) Relief from default

judgment is governed exclusively by the standards of section 473. Further, to the extent

Tudor alleges that negligence is not the proper standard of analysis, the very words

"excusable neglect" appear in section 473, subdivision (b), and prescribe a negligence

analysis as the standard. The court's reasoning that Tudor "did not act as a reasonably

prudent person" was thus an appropriate analysis of the record and application of the

standard of excusable neglect.

       Finally, the trial court did not deny Tudor due process of law. To support his due

process claim, Tudor relies on section 128, subdivision (a)(8) for the general rule that a

trial court shall have the power "to amend and control its processes and orders so as to

make them conform to law and justice." (Ibid.) Tudor then complains his incarceration

elsewhere entirely prevented him from responding to the civil suit.

       There are several problems with this argument. First, this is not the proper forum

to address or remedy any wrongful incarceration claim. Second, during a period of

roughly 18 months, from September 2009 to February 2011, the court proceeded with

OSC and CMC hearings, granted continuances, and heard these motion proceedings in an

orderly way. The court provided Tudor with several sufficient opportunities to respond,

which does not represent a denial of due process. Despite his incarcerated status for

seven months, Tudor had some access to the court while he was incarcerated and was

able to take some steps to defend himself in the action. He was given notice of every

                                             10
OSC and CMC hearing, and the court, over the objections of plaintiffs' counsel, granted

continuances that provided him with an opportunity to appear. Tudor communicated

with the court and requested continuances on his hearings, through his letters to the court,

and through friends. However, he did not bring a timely motion for relief from default.

       This record does not demonstrate that Tudor's due process rights were violated.

The trial court properly exercised its discretion in denying his motion to set aside the

default judgment.

                                      DISPOSITION

       The judgment is affirmed. The parties are to bear their own costs on appeal.




                                                                   HUFFMAN, Acting P. J.

WE CONCUR:



                    McDONALD, J.


                    McINTYRE, J.




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