Superior Investments Management v. Marks CA2/6

Filed 10/19/22 Superior Investments Management v. Marks CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

SUPERIOR INVESTMENTS 2d Civil No. B314536 MANAGEMENT INC., et al., (Super. Ct. No. 56-2020- 00543440-CU-BC-VTA) Plaintiffs and Respondents, (Ventura County)

v.

JOHN L. MARKS, Individually and Trustee, etc.,

Defendant and Appellant.

John L. Marks, as an individual and trustee of the John L. Marks Trust, appeals the trial court’s denial of his motion to set aside default and default judgment after it found his default constituted inexcusable neglect. (See Code Civ. Proc., § 473, subd. (b).)1 We affirm.

All further statutory references are to the Code of Civil 1 Procedure, unless otherwise indicated.

FACTS AND PROCEDURAL HISTORY In July 2020, respondents Superior Investments Management, Inc., Tony Marino and Associates, Inc., and Linda Kocalis Corwin, as trustee of the Harold Kocalis Trust, filed the instant action against appellant, his wife, Anna Marks, and his mother, Dorothy Marks (collectively “appellants”)2 alleging damages for breach of obligation to pay money. (Civ. Code, § 3302.) In the first amended complaint, respondents contended that appellants executed a promissory note in May 2020 for the principal sum of $500,000 with interest, due and payable on June 26, 2020. Appellants subsequently defaulted on the note and ignored respondents’ demand for repayment. In October 2020, the trial court entered default after appellants failed to file an answer. In late March 2021, appellants moved the trial court to set aside default and default judgment. In his motion for relief, appellant contended that he was “overwhelmed” by the “stress” of personal family problems, which caused him to misunderstand the “process and time demands” to file an answer. He also claimed that he had not seen, nor had he ever signed, the promissory note attached as an exhibit to the complaint. He included a declaration from a Certified Handwriting Examiner who opined it “unlikely” that appellants signed the note. The trial court denied the motion, stating that appellants’ motion focused primarily on the merits of their defense, and “barely address[ed] the foundational issue of mistake, inadvertence, surprise or excusable neglect.” The trial court