Law Offices of Joseph P. Scully v. Gambina CA4/3

Filed 4/27/16 Law Offices of Joseph P. Scully v. Gambina CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

LAW OFFICES OF JOSEPH P. SCULLY, P.C., G050600 Plaintiff and Appellant, (Super. Ct. No. 30-2013-00637844) v. OPINION JOHN GAMBINA,

Defendant and Respondent.

Appeal from a judgment and order of the Superior Court of Orange County, James E. Loveder, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. The Law Office of John Derrick and John Derrick for Plaintiff and Appellant. Smith Hall Strongin, Eric B. Strongin and Ladan Shelechi for Defendant and Respondent.

INTRODUCTION Attorney Joseph Scully appeals from an order vacating a default and a default judgment against his former client, John Gambina. The trial court granted Gambina’s motion to set aside the default on the ground that Scully had committed extrinsic fraud by failing to send Gambina the notice of the availability of arbitration of 1 fee disputes as required by Business and Professions Code section 6201 when Scully sued him for unpaid fees. Because the court vacated the default, it also vacated the default judgment Scully had obtained against Gambina. We affirm. The trial court exercised its discretion to set aside both the default and the default judgment. Under the circumstances here presented, we cannot find abuse of this discretion. FACTS Scully filed a complaint for attorney fees against Gambina on March 15, 2013. Scully did not send Gambina the notice of the client’s right to arbitrate fee disputes mandated by section 6201, subdivision (a), either with the summons or at any other time. Gambina did not respond, and default was entered against him on May 7, 2013. Representing himself, Gambina moved to set aside the default on June 13, 2 2013. The grounds were quite difficult to ascertain and mostly dealt with the merits of Scully’s lawsuit. For example, he claimed he had never discussed fees with Scully “until [Gambina] received the Summons.” As to the reason he did not timely respond, Gambina 3 stated, “I was served several weeks after the 3/15/2013 was server on 4/12/2013 [sic].” 1 All further statutory references are to the Business and Professions Code unless otherwise indicated. 2 Gambina called his pleading a motion to set aside a default judgment, but as of that time, no judgmen t had been entered. 3 The proof of service stated that Gambina was served by substitute service on March 24, 2013, with a mailing the next day.