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Rodriguez v. Henard

May 28, 2009


APPEAL from a judgment of the Superior Court of Fresno County. Donald R. Franson, Jr., Judge. (Super. Ct. No. 07CECG03604)

The opinion of the court was delivered by: Kane, J.



Defendants Neidin Henard and Joseph Henard appeal from the denial of their motion under Code of Civil Procedure section 473 to set aside the defaults and default judgment taken against them.*fn1 Defendants contend the trial court should have granted the requested relief in light of an asserted "notice" defect concerning the default proceedings. Specifically, defendants stated in their declarations submitted in support of the motion that they never received a copy of plaintiffs‟ request for entry of default or request for a default judgment, and that said default papers were mailed using an incorrect zip code. After considering all the declarations, the trial court concluded defendants were adequately apprised of the default proceedings and denied the motion. Defendants‟ appeal followed. We will affirm.


On October 26, 2007, plaintiffs, Jesus Rodriguez and Martha Rodriguez, filed their complaint against defendants, Neidin Henard and Joseph Henard, alleging that defendants committed fraud, conversion and breach of fiduciary duty.*fn2 According to the complaint, plaintiffs experienced difficulty in making mortgage payments on their home in Watsonville, California, and defendants offered to help out, eventually inducing plaintiffs to sign a power of attorney. When plaintiffs‟ Watsonville home was sold in April of 2007, defendants fraudulently caused the escrow company to pay $18,157 of the proceeds to defendants‟ personal account. Plaintiffs did not discover this fact until October of 2007. In May of 2007, plaintiffs attempted to purchase a new home in Fresno, California, and they deposited $38,000 into a purchase escrow. Defendants allegedly intervened and advised plaintiffs they had to move into a different, less expensive home that was located in Madera, California. After plaintiffs complied and moved into the Madera house, defendants caused the $38,000 to be transferred from the Fresno escrow into their own personal account. Plaintiffs discovered this fact in October of 2007. Thereafter, plaintiffs demanded that defendants return the $38,000 and the $18,157, but defendants allegedly failed or refused to do so. Plaintiffs then filed the instant lawsuit.

Plaintiffs‟ complaint and summons were duly served on defendants. According to the proofs of service on file in the trial court, Neidin Henard was served on October 27, 2007, and Joseph Henard was served on October 29, 2007. The summons clearly warned defendants that they had to respond: "You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your case.. If you do not file your response on time, you may lose the case by default, and your wages, money, and property may be taken without further warning from the court."

After the lawsuit was filed, plaintiffs‟ attorney, Nathan Miller, had several telephone conversations with defendants. Mr. Miller personally informed defendants that unless they responded to the complaint within the 30 days or otherwise made arrangements to pay plaintiffs the money they "stole," plaintiffs would be pursuing a default judgment against them.

In early November of 2007, defendants contacted a family friend who was also an attorney, Gary Talesfore. Defendants asked Mr. Talesfore if he would call Mr. Miller "to see if a settlement could be reached." Defendants were "informed and believe[d]" that Mr. Talesfore did in fact contact Mr. Miller. According to Mr. Talesfore, in November and December 2007, he spoke with Mr. Miller in an attempt to negotiate a settlement of the matter. Mr. Talesfore‟s declaration does not provide any elaboration on what he said to Mr. Miller or what Mr. Miller said to him.

Mr. Miller‟s declaration was far more specific. He recalled speaking with Mr. Talesfore in December of 2007, before taking defendants‟ defaults. Mr. Talesfore was well aware of the pending lawsuit against defendants at the time of their conversation. Mr. Miller advised him that plaintiffs had already received several false assurances from defendants that the money would be returned and warned that further delays would not be tolerated. Moreover, Mr. Miller specifically recalled telling Mr. Talesfore that unless the money was immediately returned to plaintiffs, he would move forward with an attempt to obtain a judgment.

Plaintiffs filed their request for entry of default on December 17, 2007, and default was entered that same day. During the following week, Mr. Miller spoke to Mr. Talesfore and informed him that because defendants failed to file a responsive pleading, he took their defaults. Mr. Talesfore then promised that a check would soon be delivered by defendants to repay a portion of the money (i.e., $32,000). No such check was ever delivered.

On December 19, 2007, plaintiffs filed their request or application to the court for entry of a default judgment. The request included supporting declarations to prove plaintiffs‟ damage claims. Pursuant to plaintiffs‟ request, the trial court scheduled a default prove-up hearing in the case for February 6, 2008. In January of 2008, Mr. Miller contacted Mr. Talesfore to inform him that a default prove-up hearing was set for February 6, 2008. Mr. Miller noted in his declaration that he called Mr. Talesfore 10 or 15 times that month in an effort to get through to him.

On February 7, 2008, the trial court conducted the default prove-up hearing and entered a default judgment in plaintiffs‟ favor in the amount of $59,597.86.

After plaintiffs initiated efforts to enforce the judgment, defendants promptly retained Mr. Casheros as their attorney and moved to set aside the defaults and default judgment pursuant to section 473.*fn3 Among other things, defendants argued in that motion that they never received a copy of the request for entry of default or the request for court judgment, in the mail or otherwise, and they pointed out that the zip code set forth on the affidavits of mailing was incorrect. Specifically, the affidavits of mailing submitted by plaintiffs stated that defendants‟ address was "19 South Circle Drive[,] Santa Cruz, CA 95076." Although the address was in all other respects accurate, the correct zip code was "95060." In addition to this alleged notice defect, defendants also argued that the defaults and default judgment should be set aside on the ground of excusable neglect because defendants were ...

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