Filed 10/19/22 Superior Investments Management v. Marks CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

SUPERIOR INVESTMENTS 

MANAGEMENT INC., et al.,

 Plaintiffs and Respondents,

v.

JOHN L. MARKS, 

Individually and Trustee, etc.,

 Defendant and Appellant.

2d Civil No. B314536

(Super. Ct. No. 56-2020-

00543440-CU-BC-VTA)

(Ventura County)

John L. Marks, as an individual and trustee of the John L. 

Marks Trust, appeals the trial court’s denial of his motion to set 

aside default and default judgment after it found his default

constituted inexcusable neglect. (See Code Civ. Proc., § 473, 

subd. (b).)1 We affirm.

1 All further statutory references are to the Code of Civil 

Procedure, unless otherwise indicated.
2

FACTS AND PROCEDURAL HISTORY

In July 2020, respondents Superior Investments 

Management, Inc., Tony Marino and Associates, Inc., and Linda 

Kocalis Corwin, as trustee of the Harold Kocalis Trust, filed the 

instant action against appellant, his wife, Anna Marks, and his 

mother, Dorothy Marks (collectively “appellants”)2 alleging

damages for breach of obligation to pay money. (Civ. Code, §

3302.) In the first amended complaint, respondents contended 

that appellants executed a promissory note in May 2020 for the 

principal sum of $500,000 with interest, due and payable on June 

26, 2020. Appellants subsequently defaulted on the note and 

ignored respondents’ demand for repayment.

In October 2020, the trial court entered default after 

appellants failed to file an answer. In late March 2021, 

appellants moved the trial court to set aside default and default 

judgment. In his motion for relief, appellant contended that he 

was “overwhelmed” by the “stress” of personal family problems, 

which caused him to misunderstand the “process and time 

demands” to file an answer. He also claimed that he had not 

seen, nor had he ever signed, the promissory note attached as an 

exhibit to the complaint. He included a declaration from a 

Certified Handwriting Examiner who opined it “unlikely” that 

appellants signed the note.

The trial court denied the motion, stating that appellants’

motion focused primarily on the merits of their defense, and 

“barely address[ed] the foundational issue of mistake, 

inadvertence, surprise or excusable neglect.” The trial court 

2 We will refer to the defendants collectively as appellants, 

although Anna and Dorothy Marks did not appeal the trial 

court’s order.
3

concluded appellants’ excuses “demonstrate[d] inexcusable 

neglect, not excusable neglect.” 

DISCUSSION

Section 473 grants a trial court the discretionary authority 

to relieve a party from a judgment, order, or other proceeding 

taken against him through his mistake, inadvertence, surprise or 

excusable neglect. (Id., subd. (b).) Application for such relief 

must be made within a reasonable time, and in no case exceeding 

six months after such judgment, order, or proceeding was taken. 

(Ibid.) The party seeking relief bears the burden to establish a 

right to relief. (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 

1401, 1410; Transit Ads, Inc. v. Tanner Motor Livery, Ltd (1969) 

270 Cal.App.2d 275, 279 (Transit Ads, Inc.).) 

As we have previously stated, an appellant who seeks 

reversal of a trial court’s discretionary ruling has a “‘daunting 

task.’” (Dreamweaver Andalusians, LLC v. Prudential Ins. Co. of 

America (2015) 234 Cal.App.4th 1168, 1171.) That is because a

ruling on a motion for discretionary relief shall not be disturbed 

on appeal absent a clear showing of abuse. (Zamora v. Clayborn 

Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.) In other 

words, appellant must show that the trial court’s ruling was 

“arbitrary, capricious, whimsical, or exceeded the bounds of 

reason.” (Dreamweaver Andalusians, at p. 1171.) As we explain, 

appellant has not satisfied this exacting standard.

Here, the trial court did not abuse its discretion in 

concluding appellant had not established excusable neglect. As 

pertinent to section 473, subdivision (b), excusable neglect means 

an error that a “‘reasonably prudent person under . . . similar 

circumstances’ might have made . . . .” (Bettencourt v. Los Rios 
4

Community College Dist. (1986) 42 Cal.3d 270, 276; Transit Ads, 

Inc., supra, 270 Cal.App.2d at p. 279.) 

Appellant’s claim of “excusable neglect” rested on his 

assertion that the stress of personal family problems, including

raising his grandchildren, caused him to miss the date to file an 

answer to the complaint. But the trial court rejected this 

explanation, concluding it was “beyond comprehension” that

appellant, “armed with a strong defense of wrongdoing by 

plaintiff and with half a million dollars at stake, acted 

reasonably” by his inaction in this case. We agree. A reasonable 

person in appellant’s situation would have hired counsel to help 

him navigate the process of responding to the complaint rather 

than ignoring it altogether. 

Contrary to appellant’s contention, the record does not 

establish that he acted with “reasonable diligence.” For example,

he did not file the motion to set aside default until more than five 

months after the entry of default. Appellant’s proffered 

explanation for this delay was that he relied on respondents’

reassurances that she would dismiss the case. However, the trial 

court found that explanation lacking. 

Substantial evidence supports the trial court’s finding that 

appellant’s failure to timely respond to the complaint and his 

lengthy delay in seeking relief was not excusable neglect. In light 

of our “limited” review, we will not substitute our judgment for 

that of the trial court’s, even where contrary findings could have 

been made. (See Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-

479; In re Marriage of Connolly (1979) 23 Cal.3d 590, 597-598.)

Appellant resists this conclusion and contends that reversal 

is required because respondents will suffer no prejudice and the 

law favors a trial on the merits. “Although the policy of the law 
5

is to favor a hearing on the merits of a case, courts are not 

required to set aside default judgments for defendants who 

flagrantly ignore the responsibility to present a defense,” or who 

cannot “demonstrate a satisfactory excuse for not responding” to 

the original action. (Stiles v. Wallis (1983) 147 Cal.App.3d 1143, 

1148.) 

Lastly, appellant’s contention that the default judgment is 

void on its face is waived because he did not raise it below. (See 4 

Witkin, Cal. Procedure (6th ed. 2021) Pleading, § 124, p. 186.) 

DISPOSITION

The order denying the motion to set aside default and 

default judgment is affirmed. Respondents are awarded costs on 

appeal.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P. J.

BALTODANO, J.
 Benjamin F. Coats, Judge

Superior Court County of Ventura

______________________________

Sollertis and Steven W. Blake, Giovanni A. Correa, for 

Defendant and Appellant.

Freeman Fazio and Sara D. Fazio, for Plaintiffs and 

Respondents.