Maize v. Cuevas CA2/2

Filed 12/23/14 Maize v. Cuevas CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

RICHARD MAIZE, B249597

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BC493603) v.

JAIME CUEVAS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Mary Ann Murphy, Judge. Affirmed.

Humphrey + Law, J. Scott Humphrey for Defendant and Appellant.

Hamburg, Karic, Edwards & Martin, Gregg A. Martin, David M. Almaraz for Plaintiff and Respondent. ___________________________________________________

A defendant failed to answer a complaint, thinking that no default would be taken because he and plaintiff were friends and business associates. He was mistaken. The trial court (1) denied mandatory relief from default because defendant was not represented by counsel when the default was taken, and (2) denied discretionary relief because defendant’s neglect was inexcusable and a prudent person would have answered the complaint instead of ignoring it. (Code Civ. Proc., § 473.) We affirm. FACTS Plaintiff Richard Maize sued defendant Jaime Cuevas to collect a $50,000 loan. Defendant was personally served with the lawsuit on October 15, 2012. He admits receiving the summons and complaint; however, he did not take the matter seriously because plaintiff was a friend and business associate, and “I believed that Maize and I would either resolve the dispute outside of court or at least litigate as gentlemen.” Defendant’s belief proved to be misplaced. On November 20, 2012, six days after the deadline for responding to the complaint, plaintiff had a default entered. On December 7, 2012, defendant wrote to plaintiff’s attorney, expressed disappointment about the lack of courtesy, and asked that the default be set aside so that he could answer the complaint. Plaintiff refused. Defendant moved to set aside the default on the grounds of mistake, inadvertence or excusable neglect. He submitted a declaration blaming his own “good faith [belief] that Maize would not seek to deny me the ability to respond to his complaint,” adding, “[i]n retrospect, I was naïve to believe that Maize would not try to take advantage of me in this litigation.” Defendant was surprised that plaintiff’s counsel did not contact him before taking the default. Plaintiff countered that defendant showed a lack of diligence by waiting two months to seek relief. There was no evidence of excusable neglect, mistake or surprise: defendant’s failure to read the summons—or his hope that no default would be entered— was inexcusable. Defendant admitted to being served with the summons and complaint, but chose to ignore the lawsuit. Plaintiff’s counsel had warned defendant of “one last opportunity to repay the loan” before plaintiff pursued legal action.