Filed 2/7/ 23 Tillman v. Mills CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 r ule 8.1115(b) . This opinio n has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

ED TILLMAN
,

Cross

- complainant and Appellan t ,

v.

CHRI STOPHER LEMONT MILLS et al.
,

Cross

- defendants and R espondents

. B 3 17 990

(Los Angeles County Super. Ct. No. 19 NWCV00782 )

APPEAL from a n order of the Superior Court of
Los Angeles County. Olivia Rosales , Judge

. Reversed and
remanded with di recti o ns

.

L aw Offi ce s of Alan G. Novodor and Alan G. Novodor for Cross

- complainant and Appellant

.

No appearance for Cross

- defendant s and Respondent s

.

____________________2 Cross

- co mplainant and appellant Ed T illman (Tillman) appeals from a trial court o rder s etting aside the defa u lts of

cross

- d e fend ants and respondents Christopher Lemont Mills and Constanti na S. Mills ( co llectively cross

- defendants or the Millses )
and the resulting default j udgment entered in favor of Tillman

. Tillm an argues tha t the tr ial co urt erred in gran ting cross

defendants ’ m otion pursuant to Code of C ivil Pro cedure s ection 473, subdivision (b)

. 1
We agree with Tillman that cross

- defendants ’ motion s to set aside their default s w ere untimely . Accordingly, we re verse the tri al cour t ’ s ord er and direct the tri al court to reinstat e the
default s and de fault judgment

. FACT UAL AND PROCEDURAL BACKGROUND Factual Background Tillm an lea sed a 2011 Bentley Mulsanne automobile from Porsche Leasing Ltd. and Porsche Financial Se rvices, In c. doing busin ess as Bentley Financ ial Services (collec tively Porsche Leasing )

. T illman was a longtime per sonal friend of the Millses. When they asked if they could sublease the Bentley from him, he agreed

. In August 2014, Ti llman and cross

- defen d ants e ntered i nto a n oral a greement, pursuant to which the Millses agreed to timely make the lease payments to Porsche Leasing and promptly return the vehicle to Tillman before the end of the lease or upon demand

.

1 All further statu t ory references are to the Code of Civi l Procedure unless otherwise indicated.3 On J uly 17, 2019, Porsche Leasing notified Till man t hat the M illses had failed to make the requ ired monthly payments.
Tillman co ntacted the Millses
, demanding that they either make the lease payments or return th e Bentley to him. They failed to do so, prompt ing this litigation. Complaint
On Oc tob er 8 , 2019, Porsc he Leasing filed a comp laint against Tillman

. C ross

- co mplaint O n Nov ember 22, 2019 , Tillman filed a cross

- complaint against the Millses

. Ser vice by publication After r epeated attempts at personal service and servi ce pursuant to secti on 415.30 2 failed , Till man obtained an order to

serve cross

- defendants by publ ication. P roof of publ ication was filed with the trial court.
R equest for entry of default
When cross

- defenda nts neglected to ans wer the cross

complaint, on October 9, 2020, t heir defau lt s were enter ed

. D efault judgment
A default judgment in favor of Tillman and against cross

defendants was entered on July 13, 2021.

2 Section 415.30, subdivision (a) provides that “ A summons may be served by mail as provided in this section. A copy of the

summo ns and of t he compl a i nt shall be mailed (by fir st

- class mail or airmail, postage prep aid) to the person to be served, together with two copies of the notice and acknowledgment provided for in subdivision (b) and a return envelope, postage prepaid, addresse d to the se nder

. ”4

M otion s to set as ide default s Approx imately o ne week later, cross

- defendants each filed
a motion to set aside their defau lt p ursu ant to section 473, subdivision (b). Specifically, they sought “ discretionary relief ”
from the trial court on the grounds that their defaults and the resulting default judgm ent “ occurred as a result of surprise and excusable neglect because [they were] ne ver pe rsonally served with a copy of the Summons or Cross

- Co mplaint and only

re cently learned of this action. ” Tillman oppo sed the motion s

. He argued, in ter alia, that the motions were untimely: Under section 473, subdivision (b), a
motion to vac ate a de fault must be brought with in six months of the date of the default. Because the motion s were filed in July 2021, more than six months after cross

- defendants ’ defaults were entered in October 202 0, the trial court lacked jurisdiction to grant the m otions. After en tertaining ora l argument, the trial court granted

cross

- defend ants ’ motion s pursua nt to section 473, subdivision (b), 3 setting aside cr oss

- defendants ’ default s and the resulting default judgment. Appeal
T ill man ’ s timely appeal ensued.

3 The first pa ge of trial co urt ’ s minute order indicates that the motions were brought under section 4 73.5 , although its analysis specifically cites and quotes section 473, subdivision (b)

. In light of the parties ’ w ritten arguments
, the a bsence o f a
repo rter ’ s t ranscript, and the substance of the tr ial court ’ s order,

we presume the r e f

erence to section 47 3.5 is a typographical

error.5 D ISC USS IO N
T he pur pose of section 473, subdi vision (b), i s to promote the det ermination of actions on thei r merits. ( Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 83 0, 8 39.) To that end , it offers t wo avenues, one d iscre tio na ry a nd one mandatory, for parties to obtain relief
from default s and default judgmen ts. The discretionary relief portion of the statute is at issue here. It provides: ‘ The court may, upon any term s as may be just, relieve a party or his or her lega l r eprese ntative from a judgment, dismissal, ord er, or other proceed ing taken a gainst him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief

. . . shall be made within a reasonable time, in no case

ex ceedin g six months, after the judgment, dismi ssal, order, or

proc eeding w as taken. ” ( § 473, subd. (b); see also Pulte Homes Corp. v. Williams Mechanical, Inc. (2016) 2 Cal.App. 5th 267, 273 ( Pulte Home s ) .) “T he general rule is that the six

- month pe riod wit hin wh ich to bring a motion to vacate under s ec tion 473 runs from the date of the default and not from the judgment taken thereafter. [Citations.] ” (

Rutan v. Summit Sports (1985) 173 Cal.App.3d 965, 970 ; see also Sugasawara v. Newland (1994) 27 C al.Ap p.4 th
294 , 296

– 297 [noting that t h is rule applie s in cases of discre tionary relief] ; Weil & Brown, Cal. Practice Gui de:
Civil Procedure Before Trial (The Rutter Group 20 22
, ¶ 5:279
, p. 5

- 74 ) .) “ This six

- month time li mit ation is juris dictional; the

c ourt has no po wer to grant relief under section 473 o nce the time has lapsed. ” (

Aus tin v. Los Angeles Unified School District (2016) 244 Cal.App.4th 918, 928.)6 C ross

- defendants ’ defaults were entered on October 9,
2020 , and the default judgment was entere d aga ins t them on July 13, 2021

. W hil e t heir motion s for relief were filed less than six months a fter entry of the default judgment, they were filed more than six months after entry of their default s

. Under these circumstances, “ [t] he trial cou rt

. . . c ould not set a side the
default [s] unde r

. . . section 473. And becau se it could not set aside the default [s] , it also could not set as ide the default judgment under

. . . section 473, because that would be ‘ “ an idle

act. ” ’ [Citation.] ‘ ‘ ‘ If th e judgment were va cated, it would be the duty of the court immediately to render another judgment of like effect, and the [cross

- ] defendants, stil l being in default, could not be heard in opposition thereto

. . . . ” ’ [Citations.] ” ( Pulte H o mes , supra , 2 C al.App.5th at p. 2 73.) W e therefore conclude tha t the Millses were not entitled to
rel ief under section 473. 4

4 In his opening brief, Tillman further argues that the Millses were not entitled t o re lief either under section 4 73.5 or pursu ant to the tr ial court ’ s equi table powers

. Because cross

defendants did not raise these grounds either on appea l or in their motions , and the trial court did not rely upon them, we need

n ot address them here.7 DISPOSITION
T he order setting aside cross

- defend ants ’ d efaults and the default j udgment ag ain st them is reversed

. The trial court is directed to reinstate the d efa ults a nd the default judgment

. Tillman is entitled to costs on app eal.
N OT T O BE PUBLISHED IN THE OFFICI AL REPORTS

.

________ _____ _____ ___, J. A SHMANN

- G ER ST

We concur:

_____________________ ___, P. J. LUI

___ ____ _____ ___ _____ ___ _, J. H O FFSTA DT