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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

ED TILLMAN,

Cross-complainant and 

Appellant,

v.

CHRISTOPHER LEMONT MILLS 

et al.,

Cross-defendants and 

Respondents.

 B317990

 (Los Angeles County

 Super. Ct. No. 19NWCV00782)

APPEAL from an order of the Superior Court of 

Los Angeles County. Olivia Rosales, Judge. Reversed and 

remanded with directions.

Law Offices of Alan G. Novodor and Alan G. Novodor for 

Cross-complainant and Appellant.

No appearance for Cross-defendants and Respondents.

____________________
2

Cross-complainant and appellant Ed Tillman (Tillman)

appeals from a trial court order setting aside the defaults of 

cross-defendants and respondents Christopher Lemont Mills and 

Constantina S. Mills (collectively cross-defendants or the Millses)

and the resulting default judgment entered in favor of Tillman. 

Tillman argues that the trial court erred in granting crossdefendants’ motion pursuant to Code of Civil Procedure section

473, subdivision (b).

1

We agree with Tillman that cross-defendants’ motions to 

set aside their defaults were untimely. Accordingly, we reverse

the trial court’s order and direct the trial court to reinstate the 

defaults and default judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Factual Background

Tillman leased a 2011 Bentley Mulsanne automobile from 

Porsche Leasing Ltd. and Porsche Financial Services, Inc. doing

business as Bentley Financial Services (collectively Porsche

Leasing).

Tillman was a longtime personal friend of the Millses. 

When they asked if they could sublease the Bentley from him, he 

agreed. In August 2014, Tillman and cross-defendants entered 

into an oral agreement, 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 statutory references are to the Code of Civil 

Procedure unless otherwise indicated.
3

On July 17, 2019, Porsche Leasing notified Tillman that

the Millses had failed to make the required monthly payments. 

Tillman contacted the Millses, demanding that they either make 

the lease payments or return the Bentley to him. They failed to 

do so, prompting this litigation.

Complaint

On October 8, 2019, Porsche Leasing filed a complaint 

against Tillman.

Cross-complaint

On November 22, 2019, Tillman filed a cross-complaint 

against the Millses.

Service by publication

After repeated attempts at personal service and service 

pursuant to section 415.302 failed, Tillman obtained an order to 

serve cross-defendants by publication. Proof of publication was 

filed with the trial court.

Request for entry of default

When cross-defendants neglected to answer the crosscomplaint, on October 9, 2020, their defaults were entered.

Default judgment

A default judgment in favor of Tillman and against crossdefendants 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

summons and of the complaint shall be mailed (by first-class mail 

or airmail, postage prepaid) 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, addressed 

to the sender.”
4

Motions to set aside defaults

Approximately one week later, cross-defendants each filed 

a motion to set aside their default pursuant to section 473, 

subdivision (b). Specifically, they sought “discretionary relief”

from the trial court on the grounds that their defaults and the 

resulting default judgment “occurred as a result of surprise and 

excusable neglect because [they were] never personally served 

with a copy of the Summons or Cross-Complaint and only 

recently learned of this action.”

Tillman opposed the motions. He argued, inter alia, that 

the motions were untimely: Under section 473, subdivision (b), a 

motion to vacate a default must be brought within six months of 

the date of the default. Because the motions were filed in July

2021, more than six months after cross-defendants’ defaults were 

entered in October 2020, the trial court lacked jurisdiction to 

grant the motions.

After entertaining oral argument, the trial court granted 

cross-defendants’ motions pursuant to section 473, subdivision 

(b),3 setting aside cross-defendants’ defaults and the resulting 

default judgment.

Appeal

Tillman’s timely appeal ensued.

3

The first page of trial court’s minute order indicates that 

the motions were brought under section 473.5, although its 

analysis specifically cites and quotes section 473, subdivision (b). 

In light of the parties’ written arguments, the absence of a 

reporter’s transcript, and the substance of the trial court’s order, 

we presume the reference to section 473.5 is a typographical 

error.
5

DISCUSSION

The purpose of section 473, subdivision (b), is to promote 

the determination of actions on their merits. (Even Zohar 

Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC

(2015) 61 Cal.4th 830, 839.) To that end, it offers two avenues, 

one discretionary and one mandatory, for parties to obtain relief 

from defaults and default judgments. The discretionary relief 

portion of the statute is at issue here. It provides: ‘The court 

may, upon any terms as may be just, relieve a party or his or her

legal representative from a judgment, dismissal, order, or other 

proceeding taken against 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

exceeding six months, after the judgment, dismissal, order, or 

proceeding was taken.” (§ 473, subd. (b); see also Pulte Homes 

Corp. v. Williams Mechanical, Inc. (2016) 2 Cal.App.5th 267, 273

(Pulte Homes).)

“The general rule is that the six-month period within which 

to bring a motion to vacate under section 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 Cal.App.4th 

294, 296–297 [noting that this rule applies in cases of 

discretionary relief]; Weil & Brown, Cal. Practice Guide: 

Civil Procedure Before Trial (The Rutter Group 2022, ¶ 5:279, 

p. 5-74).) “This six-month time limitation is jurisdictional; the 

court has no power to grant relief under section 473 once the time 

has lapsed.” (Austin v. Los Angeles Unified School District (2016) 

244 Cal.App.4th 918, 928.)
6

Cross-defendants’ defaults were entered on October 9, 

2020, and the default judgment was entered against them on 

July 13, 2021. While their motions for relief were filed less than 

six months after entry of the default judgment, they were filed

more than six months after entry of their defaults. Under these 

circumstances, “[t]he trial court . . . could not set aside the 

default[s] under . . . section 473. And because it could not set 

aside the default[s], it also could not set aside the default 

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

act.”’ [Citation.] ‘‘‘If the judgment were vacated, it would be the 

duty of the court immediately to render another judgment of like 

effect, and the [cross-]defendants, still being in default, could not 

be heard in opposition thereto. . . .”’ [Citations.]” (Pulte Homes,

supra, 2 Cal.App.5th at p. 273.)

We therefore conclude that the Millses were not entitled to 

relief under section 473.4

4

In his opening brief, Tillman further argues that the 

Millses were not entitled to relief either under section 473.5 or 

pursuant to the trial court’s equitable powers. Because crossdefendants did not raise these grounds either on appeal or in 

their motions, and the trial court did not rely upon them, we need 

not address them here.
7

DISPOSITION

The order setting aside cross-defendants’ defaults and the 

default judgment against them is reversed. The trial court is 

directed to reinstate the defaults and the default judgment. 

Tillman is entitled to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

ASHMANN-GERST

We concur:

________________________, P. J.

LUI

________________________, J.

HOFFSTADT