Thompson, Welch, Soroko & Gilbert v. Jones CA1/3

Filed 12/29/21 Thompson, Welch, Soroko & Gilbert v. Jones 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THOMPSON, WELCH, SOROKO & GILBERT LLP, Plaintiff and Respondent, v. A160332 MARK G. JONES, (Marin County Super Ct. Defendant and Appellant. No. CIV 1801888)

Mark G. Jones appeals in propria persona from a December 2019 order denying his motion to set aside a default and default judgment. (Code Civ. Proc., §§ 473, 473.5.)1 We affirm. BACKGROUND Jones hired the Thompson, Welch, Soroko & Gilbert LLP law firm (Thompson) to represent his company in litigation and signed a personal guaranty on his company’s behalf. Thompson performed the legal work, but Jones did not pay for it. In email correspondence and telephone conversations with Jones, Thompson tried — without success — to resolve the fee dispute.

1 Undesignated statutory references are to the Code of Civil Procedure.

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In June 2018, Thompson filed a verified complaint against Jones alleging claims for breach of written guaranty and quantum meruit. Thompson emailed Jones a courtesy copy of the file-endorsed complaint later that month. Thompson tried, numerous times, to personally serve Jones with the summons and complaint. Those attempts were unsuccessful. In August — and pursuant to a trial court order — Thompson served the summons by publication; it later served Jones with notice of entry of the order authorizing service by publication, and with proof of publication, by mail. Service was deemed complete in September. Jones did not file a responsive pleading. In late October 2018, the trial court entered Jones’s default. About a week later, Jones moved in propria persona to set aside the default under section 473, subdivision (b) on the grounds of mistake, surprise, and excusable neglect. In January 2019, the court denied the motion. It concluded Thompson properly served Jones by publication after he engaged “in a concerted effort to avoid personal service.” The court also determined Jones knew Thompson had filed a lawsuit, and that he had not denied receiving notice of entry of the order authorizing Thompson to publish the summons; as a result, Jones could not “reasonably claim to be surprised by the entry of default following service by publication.” Finally, the court noted Jones had failed to file a proposed responsive pleading as required by section 473, subdivision (b). In February 2019, the court entered a default judgment for Thompson in the amount of $85,097,37. In late August 2019, Jones moved to set aside the default and default judgment, and for other relief. In that motion, Jones argued he was entitled to relief from the default and default judgment under section 473, subdivision (b). He also contended Thompson’s failure to warn