Schneider v. David CA1/3

Filed 10/30/13 Schneider v. David CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

SCOTT SCHNEIDER, Plaintiff and Respondent, A137533

v. (San Mateo County JULIETA DAVID, Super. Ct. No. CIV513152) Defendant and Appellant.

Defendant Julieta David appeals from a default judgment after the trial court refused to set aside her default under Code of Civil Procedure section 473.1 Because the record discloses facts sufficient to justify the trial court’s decision to deny relief, we conclude the trial court did not abuse its discretion and affirm. BACKGROUND David was personally served with a summons and complaint from plaintiff Scott E. Schneider seeking damages for deceit, fraud, unjust enrichment, and conversion. She did not respond to the complaint, and on May 16, 2012, the court entered her default. 2 On June 8, Schneider served David via her husband with a notice of hearing for entry of default judgment set for July 10.

1 All further statutory references are to the Code of Civil Procedure unless otherwise designated. 2 All further dates references are 2012 unless otherwise designated.

1

On June 28, David opposed the motion for entry of judgment by default and on July 13 moved to set aside her default under section 473. Accompanying her motion were responsive pleadings to the complaint, a declaration from David’s attorney, Marco Acosta, and an exhibit to the declaration, a letter from Acosta to Schneider’s counsel dated June 19. Acosta claimed David had first contacted him on June 11 and informed him of the lawsuit, and that David’s former attorney failed to advise her of the need to file a timely responsive pleading. Schneider opposed David’s motion and argued that it should be denied because her showing was unsupported with competent evidence. Schneider also filed an accompanying declaration by his counsel, Michael Mazzocone, and objected to Acosta’s declaration. Mazzocone’s declaration recounted communications between the parties about David’s request for relief under section 473 and criticized the veracity of David’s claim that she was misinformed by her “phantom” former attorney. Schneider objected to Acosta’s declaration on the grounds that it was predicated upon inadmissible hearsay and provided information for which Acosta had no personal knowledge. On August 22, David filed her own declaration setting forth the basis for her failure to respond to the complaint and summons. David described how she hired attorney Fred Meis to represent her. She notified Meis of the complaint by email and telephone when she received it; she read only the complaint but neglected to read the summons. She told Meis she was scheduled to depart for a weeks-long overseas trip on April 20, and Meis did not advise her to file a response within 30 days. Based on Meis’ “misinformation and incorrect legal counsel” David believed in good faith she could go on the overseas trip and address the lawsuit when she returned in May. David also stated that Meis “failed to take responsibility for his failures” and demanded an additional retainer to continue representing her in the matter. The declaration attached a copy of an email from David to Meis dated April 15, in which she notified Meis she had been served with the complaint and described the four causes of action.