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D.R.S. Trading Company, Inc. v. Barnes

December 23, 2009


Appeal from an order of the Superior Court of Orange County, Kirk H. Nakamura, Judge. Affirmed. (Super. Ct. No. 30-2008-00101469).

The opinion of the court was delivered by: Bedsworth, Acting P. J.



Our task here is to harmonize Code of Civil Procedure sections 1008 and 473, subdivision (b). D.R.S. Trading Company, Inc. (D.R.S.), appeals from an order vacating a default and judgment entered against Vaughn Barnes and Elsa Barnes (the Barneses), contending that after the trial court initially denied the Barneses' motion for relief from default, it lacked jurisdiction to hear their motion for reconsideration of that denial. D.R.S. does not challenge the merits of the court's reconsideration decision, but instead asserts only that the court has no power to reconsider any decision under Code of Civil Procedure section 1008 (section 1008), after a judgment has been entered.

We are not persuaded. D.R.S.'s contention confuses the court's power to reconsider the merits of the entered judgment itself - or to reconsider interim orders which have been subsumed within that judgment - with its power to reconsider an order which it is specifically authorized to make, in the first instance, after entry of the judgment under Code of Civil Procedure section 473, subdivision (b). We are unconvinced by the contention the existence of a judgment somehow precludes the court from reconsideration of a motion it is explicitly empowered to consider after judgment. Consequently, the order is affirmed.


The complaint in this action was filed in San Diego Superior Court. In October of 2007, the parties, through their respective counsel, stipulated to transfer the case to Orange County Superior Court. On January 22, 2008, D.R.S. gave notice to the Barneses, through their counsel, that the matter had been transferred there and assigned to a court.

On February 27, 2008, D.R.S. notified the Barneses' counsel that there was no indication in the court's file that their responsive pleading had been filed, and stated their default would be taken on February 29, 2008, if no such pleading had been served and filed by that date. Apparently, counsel orally promised to file and serve the pleading by that deadline.

However, no responsive pleading was filed, and thus on March 12, 2008, the court clerk entered the Barneses' default. A judgment based upon that default, in the amount of $849,000, was entered July 18, 2008.

After the Barneses learned of the default judgment, they hired new counsel to seek relief from that judgment. The Barneses' new counsel spoke to their prior counsel, who apparently conceded fault in the matter, and promised to sign a declaration to that effect. However, despite several more attempts, new counsel was unable to obtain that declaration prior to filing a motion for relief from default under Code of Civil Procedure section 473.

The initial motion for relief from default was heard on September 25, 2008. The court denied the requested relief, explaining that "at this point in time, without a mandatory attorney affidavit, I don't find excusable neglect and I'm denying this motion." The court noted that the Barneses' remedy would be "to sue [prior counsel] if he is not going to give an affidavit of []fault. If it was, in fact, his responsibility to provide the respons[ive] pleading, then certainly he is subject to a malpractice suit."

After the court's ruling, the Barneses' new counsel informed their prior counsel of what had occurred. And, on October 1, 2008, the attorney finally supplied the missing declaration, in which he acknowledged the failure to file a responsive pleading in the case had been the result his own "mistake, inadvertence, surprise or neglect. . . ."

Relying upon the attorney's declaration as new evidence, the Barneses promptly moved for reconsideration of the court's order denying their request for relief from default. D.R.S. opposed the motion, arguing the court lacked jurisdiction to reconsider any of its orders after judgment had been entered.*fn1

In their reply brief, the Barneses conceded that based upon the authorities cited by D.R.S., it did "appear" the court did not have authority to reconsider its denial of relief under section 1008, but argued that even if that were true, the court could nonetheless treat the reconsideration motion as either a motion ...

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