(Super. Ct. No. SCV25580)
The opinion of the court was delivered by: Robie , J.
Granite Community Bank v. Magliarditi
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
On appeal from the default judgment entered against him, defendant Dominic J. Magliarditi challenges the denial of his motion to set aside his default. Magliarditi contends (implicitly) that the trial court abused its discretion in declining to find his failure to timely answer the complaint during settlement negotiations with plaintiff Granite Community Bank was the result of "mistake" within the meaning of Code of Civil Procedure section 473, subdivision (b) (section 473(b)). Finding no basis to conclude the trial court abused its discretion, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2009, the bank filed its complaint against Magliarditi for breach of guaranty. The complaint alleged that Magliarditi had agreed in writing to guaranty the indebtedness of a corporation called 181 Exposition, LLC, which had defaulted on a promissory note in favor of the bank in the principal sum of $1.3 million.
Magliarditi was served with the summons and complaint on September 16, 2009; thus, his response to the complaint was to be filed and served on or before October 16, 2009. (See Code Civ. Proc., § 432.10.)
Upon receipt of the complaint, Magliarditi began communicating with the bank and the bank's attorney in an attempt to settle the matter.
On October 14, an attorney claiming to represent Magliarditi contacted the bank's attorney and asked for a two-week extension of time to respond to the complaint. The request was granted; thus, Magliarditi's response was due on or before October 30.
On November 9 -- the last day to do so -- the bank's attorney filed a request for entry of Magliarditi's default.*fn1 (See Cal. Rules of Court, rule 3.110(g) ["If a responsive pleading is not served within the time limits specified in this rule and no extension of time has been granted, the plaintiff must file a request for entry of default within 10 days after the time for service has elapsed"].)
That same day, Magliarditi tried to contact the bank by telephone to inquire about the status of his last settlement offer. When he could not reach the bank by telephone, Magliarditi sent the bank's attorney an e-mail (at 2:33 p.m.) asking for a further extension of time to respond to the complaint pending the completion of settlement discussions.
The bank's attorney responded that "[a] default was entered this morning. Your answer, pursuant to our agreement, was to be filed no later than October 30. Under California State Court Rules of Court, a default had to be entered no later than today, 10 days after the answer was due. Failure to do so subjected my client to ...