MARTIAL ETAME VS WOLFRAM ERMEL

Tentative Rulings

Case Number: ****9337    Hearing Date: January 10, 2020    Dept: 24

Defendant Wolfram Ermel’s motion to set aside default and default judgment is DENIED.

The instant suit arises from a dispute over five cars owned by Plaintiff Martial Etame (“Plaintiff”). The Complaint alleges that plaintiff and Defendant Wolfram Ermel (“Defendant”) became friends about twelve years ago. Approximately ten years ago, Plaintiff and Defendant began a business together buying, selling and fixing cars. Plaintiff purchased several cars and used his expertise in repairs to rebuild car engines during that time. Plaintiff worked thousands of hours on vehicles for Defendant. In August 2017, the parties had a falling out. Plaintiff had stored several of his vehicles at Defendant’s house, including the five subject vehicles. Defendant refused to return the vehicles to Plaintiff. Instead, Defendant unlawfully converted the five vehicles.

On October 12, 2017, Plaintiff filed a Complaint against Defendant, alleging three causes for 1) breach of contract; 2) fraud and deceit; and 3) conversion. On November 29, 2017, Defendant filed a responsive pleading. On August 22, 2018, the Court held a Case Management Conference, but both parties failed to appear. The Court set an OSC re: dismissal for September 20, 2018. On September 20, 2018, Plaintiff appeared at the set OSC, but Defendant failed to appear. The Court set a second OSC re: sanctions including dismissal on October 30, 2018. Defendant again failed to appear on that date, and the Court struck his answer.

The Court entered Defendant’s default on January 28, 2019. On March 27, 2019, the Court denied Plaintiff’s default judgment application due to his failure to give notice of the requested damages. Plaintiff therefore filed a First Amended Complaint (“FAC”) on April 3, 2019. Two proofs of service are filed in connection with the FAC. No responsive pleading was filed to the FAC. On May 20, 2019, the Court entered default against Defendant on the FAC. On June 17, 2019, the Court entered default judgment against Defendant for $342,000.00.

On November 6, 2019, Defendant a collection of papers titled “Motion, Notice, Order, Demand, Petition, Warning to Set-Aside/Vacate Fraudulent-Default-Judgment with no Fact, Basis, Cause, or Service, [etc.]” On November 18, 2019, Defendant made a second filing titled “Motion, Notice, Demand, Petition, Application to Set-Aside/Vacate Default-Judgment [etc.]” On January 2, 2020, Plaintiff filed an opposition. No reply was submitted.

Legal Standard

Relief under section 473(b) is either discretionary or mandatory. Where a party cannot obtain an attorney affidavit of fault, the party may seek discretionary relief under section 473(b) due to “mistake, inadvertence, surprise, or excusable neglect.” (CCP ; 473(b).) A motion for discretionary relief must be made “within a reasonable time but in no instance exceeding six months after the judgment, dismissal, order, or proceeding was taken.” (Id.) If discretionary relief is granted, the court may in its discretion order the moving party to pay the costs, including attorney fees, incurred in obtaining the default. (Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816, 823; Vanderkous v. Conley (2010) 188 Cal.App.4th 111, 118-119.) If the motion for discretionary relief is granted, the court may order the offending attorney to pay monetary sanctions up to $1,000 to opposing parties, or up to $1,000 to the State Bar Client Security Fund, or “[g]rant other relief as is appropriate.” (CCP ; 473(c)(1)(A), (B), (C).)

A motion for relief under section 473(b) “shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted. . .” (CCP ; 473(b).) However, this requirement is not jurisdictional; substantial compliance may suffice. (Carmel, Ltd. v. Tavoussi hearing rather than serving it with moving papers].) 

Discussion

In his November 18, 2019 moving papers, Defendant makes numerous requests, including to reopen the case per CCP section 657, set aside and vacate default/default judgment per CCP sections 473 and 473.5, transfer per CCP section 395 et seq., sanctions against Plaintiff CCP section 128, and an opposition to the previously filed and granted default judgment application. His first filing November 6, 2019 makes similar arguments, albeit in a less organized fashion.

First, taken either separately or together, both documents clearly violate the length requirements set out in the Rules of Court. (CRC Rule 3.1113.) The two moving papers both brief the various requests made, interspersed with evidence, commentary, and statutes. Combined, there is at least 80 pages of briefing and argument in the moving papers. The Court could simply choose not to consider the papers. (CRC Rules 3.1300(d); 3.1113(g).)

Second, to the extent that the Court would consider Defendant’s papers, there is substantial confusion over which documents should be considered the moving papers. The Court will take the November 18, 2019 filing as the moving papers to the extent that they are relevant to the motion to set aside/vacate, as those papers lay out Defendant’s argument in a clearer fashion. The Court will consider any properly-brought evidence in the November 6, 2019 filing, but will otherwise not consider the arguments raised therein. The Court should note that this is beyond what the Court is obligated to do. Pro se litigants are held to the same standards as attorneys, and any further briefing on any issue in this case must be code compliant. That said, the motion substantive fails to show any mistake, inadvertence, surprise, or excusable neglect.

As to the initial striking and default, Defendant gave a response to the CMC/OSC on September 4, 2018. This response was titled “Final Reply to Case Management Notice, Points and Authority for Proper Venue, Reassertion Filed Response, Verified Declaration of Respondent.” He made a similar filing on July 5, 2018. This response indicated that that the Court had no jurisdiction over him, that venue was improper, and numerous other purported procedural errors. He questioned the validity of the proceedings and indicated that he was not “required to ever show-up in Los Angeles, confer with [Plaintiff], and will not appear except to the hearing to release the liens in San Diego, Vista Court on said date.” (Defendant’s 9/4/2018 filing, at 6:52-54.) Thus, Defendant clearly had notice of the suit and the hearings that led to his dismissal, and simply chose to stop participating in misguided protest. The motion would also be untimely as to any action taken against him before May 6, 2019, including striking his responsive pleading.

This completely forecloses any motion made under CCP section 473.5, as Defendant obviously had notice of this suit. Moreover, any complaints of jurisdictional defects were cured by Defendant’s numerous general appearances in this case. Further still, venue is a separate question from jurisdiction. If Defendant believed that the case should have been transferred to San Diego, he should have made a motion to that effect and reserved a hearing date. However, this does not affect the underlying validity of the proceedings.

In his moving papers Defendant also indicates that he believed that this Court could not have entered default since they would have been void, or that this Court should have dismissed/transferred this case to San Diego. (Mot. at 4:78-85.) In fact, Defendant argues that “Nieto could not have signed any default judgment against the defendant, and the assumed the Nieto court would have the plaintiff show cause by evidence, transfer the case to the proper SD jurisdiction, strike the plaintiff’s leading, and not issue ‘doomsday’ sanctions to the defendant, and dismiss the case with prejudice…” (Ibid.) This indicates that Defendant knew of the FAC and impending default, but incorrectly believed that he did not have to respond to the FAC or default judgment. Therefore, Defendant fails to show any basis for setting aside the judgment.

Defendant also attacks the proof of service but offers no substantive argument as to why the mailing service of the amended complaint was improper. He argues that the personal service was fabricated because he was out of the country. He cites no evidence for this. (See Mot. at 2:50-53.) Defendant had appeared in the action and could therefore could be served via mail. Defendant argues that the FAC was mailed to the Defendant, but offers no argument was to why this was invalid or improper. (Ibid.) Further, Plaintiff offers a copy of the FAC that he asserts has Defendant’s writing all over it. While believable, as the writing is similar in style and sustenance to other examples of Defendant’s writing found in the record, Plaintiff provides no evidentiary foundation for the exhibit, nor any suggestion as to when the writing was made. Even ignoring Plaintiff’s evidence, Defendant fails to meet his burden to demonstrate that the proofs of service were invalid or that they did not result in actual notice of the FAC.

Additionally, Defendant waited over 5 months to file the instant motion after default was taken. Defendant offers no explanation as to when he discovered the default, or what affirmative acts he took in response to correct the situation. Thus, he does not demonstrate that he was diligent to justify discretionary relief. (Luz v. Lopes (1960) 55 Cal.2d 54, 62 [the moving party must show due diligence in seeking discretionary relief after discovering the default].)  

Accordingly, Defendant’s motion to vacate/set aside the default and default judgment is DENIED. The additional requests for transfer, dismissal, sanctions, etc. are not considered.

Moving party is ordered to give notice.