BOREN, P.J.
This case stems from the failure to return a $75,000 security deposit on a residential lease at a home in Beverly Hills. Plaintiff, HRH Marie-Chantel, a Greek princess who leased the premises, alleged causes of action for violation of the statutory duty to return the security deposit (Civ. Code, § 1950.5), breach of the covenant of good faith and fair dealing, and breach of the implied warranty of habitability. A default judgment ($225,000 in damages) was entered against defendant Lisa Marie, a former soap opera actress and the lessor of the residence.
Contrary to defendant's contentions, substantial evidence supports the trial court's determination of the propriety of the service of process, and the court did not abuse its broad discretion in denying defendant's motion to set aside the default judgment. The court also correctly determined that defendant was not entitled to an offset, because plaintiff had not cashed the security deposit money tendered of only approximately $16,000. Finally, the court properly calculated statutory damages of "up to twice the amount of the security, in addition to actual damages" (Civ. Code, § 1950.5, subd. (l)) for the defendant-lessor's bad faith claim or retention of the security deposit.
We thus affirm the order denying the motion to set aside the default judgment.
According to the facts alleged in the complaint (see Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1303), plaintiff leased a residence in Beverly Hills from defendant. Pursuant to the terms of the lease agreement, plaintiff paid a security deposit of $75,000 to defendant. When plaintiff vacated the property, defendant did not return the security deposit. Rather, defendant withheld approximately $59,000 of the deposit and claimed deductions for a myriad of items for which there allegedly was no support (e.g., damage to furniture that had been stored during use of the property), or for items not permitted as deductions under section Civil Code section 1950.5 (e.g., photography expenses, administrative expenses, and loss of estimated rent). Although defendant did tender a check for $16,045, reflecting partial return of the security deposit, plaintiff never cashed the check.
On September 25, 2008, plaintiff sued for the return of the entire $75,000 security deposit and statutory damages for the bad faith claim or retention of the security deposit. On September 28, plaintiff served defendant with a summons and complaint; on October 23, plaintiff filed a proof of service of the summons and complaint as well as an affidavit of reasonable diligence. By November 5, defendant had failed to answer the complaint. On that date, plaintiff filed a request for entry of a default, and the clerk promptly entered a default judgment.
On November 10, 2008, defendant's counsel, Attorney Kathryn Stanton, filed a peremptory challenge against the judge assigned to the case, and then on November 25 moved to quash service of the summons. Defendant declared that she was not at her residence at the time of service. Defendant claimed that the act of leaving a summons and complaint on her doorstep did not constitute effective service and that the court thus lacked jurisdiction over her. Plaintiff opposed the motion and provided a supporting declaration by a registered process server who stated he personally served a woman who identified herself as the defendant.
On December 22, 2008, the court denied defendant's motion to quash service of summons and ordered defendant to file an answer to the complaint and move to set aside the default within 10 days. Defendant then retained new counsel, Attorney Richard Gordon, who moved to set aside the default. On February 24, 2009, at the hearing on the motion to set aside, the court found defendant's memorandum of points and authorities "inadequate," apparently because of the short time frame for counsel to prepare the motion. The court continued the hearing and instructed defendant to submit new moving papers.
Pursuant to the court's instruction, defendant filed on March 24, 2009, a new motion to set aside the default. The motion was made pursuant to Code of Civil Procedure section 473, subdivision (b), and urged a discretionary vacatur of the default premised on defendant's alleged "mistake, inadvertence, surprise or excusable neglect." During the initial hearing on that motion to set aside the default, defendant's attorney asked the court to continue the matter to give defendant time to procure an affidavit from her former counsel attesting to attorney fault, which would merit vacating the default under Code of Civil Procedure section 473, subdivision (b). The court allowed defendant to submit this additional evidence, and approximately a week later defendant filed a declaration from her former attorney, Kathryn Stanton.
Stanton did not explicitly declare any attorney fault on her part. Stanton's declaration explained that defendant had "authorized" her "to specially appear on [defendant's] behalf for the sole purpose of bringing a Motion to Quash Service of the Summons and Complaint." Stanton also set forth the sequence of events concerning the entry of default and the motion to quash.
Stanton, for example, indicated in her declaration (1) that she assumed a request for default would appear in the court docket as a separate entry from the entry of the default itself, (2) that she waited until a default had been entered before moving to quash the allegedly improper service of summons, and (3) that she incorrectly predicted the outcome of the motion to quash. The court found that those acknowledgments, however, either could not have logically resulted in the default, or were in any event unaccompanied by the requisite admission of error by Stanton.
Indeed, on May 13, 2009, at the continued hearing on the motion for relief from default, the court specifically questioned defendant's counsel who filed the motion, Attorney Gordon, about the basis for the motion. Gordon replied that, "[The] category that this motion is being brought under, and has been from the beginning, is my client's repeated declarations that she was surprised, which is a distinct ground for granting her relief from the default, separate and apart from attorney fault. We're not arguing attorney fault, we're arguing surprise and mistake." Gordon asserted that the basis for the surprise was that defendant's "then attorney was checking the [court's files or] record, and the record didn't show a request for a default." The court found that no mistake or surprise had caused the default judgment to be taken against defendant, and also that defendant had not demonstrated any attorney fault. Thus, the court denied defendant's motion and instructed plaintiff to proceed to prove up the judgment.
The court entered judgment in plaintiff's favor and awarded her $225,000 in damages, $17,299.89 in prejudgment interest and $582.80 in costs. Defendant filed a timely notice of appeal. Three months later, defendant filed a motion in the trial court to void the judgment, but then took the matter off the calendar.
After defendant moved to quash service of process, plaintiff bore the burden of proof; it was incumbent upon plaintiff to establish the existence of the court's jurisdiction by a preponderance of the evidence. (See Thomas J. Palmer, Inc. v. Turkiye Is Bankasi A.S. (1980) 105 Cal.App.3d 135, 146.) On appeal, the finding of the trial court will be upheld if the evidence, when viewed most favorably to the defendant, provides substantial support for the finding. (See Arnesen v. Raymond Lee Organization, Inc. (1973) 31 Cal.App.3d 991, 995.)
Contrary to defendant's assertion, plaintiff provided the court with proper proof of service of the summons and complaint. Because at the time plaintiff moved for entry of default defendant had made no attempt to appear in the action, the only inquiry is whether the trial court had appropriate documentation to support entry of default.
Defendant asserts that the process server's affidavit of reasonable diligence was purportedly misnamed and did not constitute proper proof of service. However, not only does the affidavit include the relevant information concerning service on defendant, but that affidavit is actually not the operative proof of service. Plaintiff filed a document entitled "Proof of Service Summons & Complaint" on October 23, 2008, the same day she filed the affidavit of reasonable diligence. Consistent with the affidavit, the proof of service attested to personal service of defendant on September 28, 2008. Plaintiff also subsequently filed with the trial court a declaration of the process server attesting to service.
Thus, the trial court had ample proof of service of the summons and complaint to warrant entry of the default. To the extent defendant complains about the trial court's subsequent denial of the motion to quash—a motion mentioned but not set forth in the opening brief as a discrete contention (see Cal. Rules of Court, rule 8.204(a)(1)(B); Tilbury Constructors, Inc. v. State Comp. Ins. Fund (2006) 137 Cal.App.4th 466, 482)—the claim is unavailing. We acknowledge that defendant asserted she was not at her residence on the date the summons was served. Nonetheless, the previously filed proof of service and affidavit of reasonable diligence, as well as plaintiff's declarations from a process server and the attorney who filed the proof of service and affidavit of reasonable diligence, established that a registered process server personally served defendant with the documents.
Accordingly, the service of process described in the declarations provided by plaintiff was legally proper (see Code Civ. Proc., § 415.10), and substantial evidence supports the trial court's determination.
The ruling on a motion to vacate a default rests in the sound discretion of the trial court, and the court's order will not be disturbed on appeal unless an abuse of discretion clearly appears. (Hu v. Fang (2002) 104 Cal.App.4th 61, 64; Yarbrough v. Yarbrough (1956) 144 Cal.App.2d 610, 614.) A motion made within six months after entry of default may be directed to the court's statutory power to grant discretionary relief for "mistake, inadvertence, surprise, or excusable neglect." (Code Civ. Proc., § 473, subd. (b).) Alternatively, a motion to vacate will entitle a party to relief from default and the resulting judgment whenever, on a timely application for relief, the request "is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect" that "result[ed]" in the default or resulting judgment. (Code Civ. Proc., § 473, subd. (b).) Defendant's opening brief, in a somewhat scattered fashion, asserts claims for relief under both types of situations—discretionary relief based mistake, surprise, etc., and mandatory relief based on attorney fault.
The use of an appropriate attorney affidavit of fault invokes the mandatory relief provision, as long as statutory requirements are satisfied. (Lorenz v. Commercial Acceptance Ins. Co (1995) 40 Cal.App.4th 981, 989.) The purpose of the attorney affidavit provision "is to relieve the innocent client of the burden of the attorney's fault, to impose the burden on the erring attorney, and to avoid precipitating more litigation in the form of malpractice suits." (Metropolitan Service Corp. v. Casa de Palms, Ltd. (1995) 31 Cal.App.4th 1481, 1487.)
Defendant asserts that her attorneys' incompetent conduct provides a mandatory basis for vacating the default and ensuing judgment under Code of Civil Procedure section 473, subdivision (b). According to defendant, both of her former attorneys, Stanton and Gordon, committed malpractice that merits vacating the default judgment.
In the present case, attorney Stanton did not specifically admit in her declaration any misconduct. It may well have been that, as defendant urges, Stanton was "clueless" and failed to file an answer or otherwise respond to the complaint. However, Stanton's uncontradicted declaration reveals that defendant engaged her as counsel for the limited purpose of filing a motion to quash. Stanton did exactly what she was retained to do; she filed a motion to quash. Stanton thus did not engage in any misconduct resulting in the default.
Defendant then quickly retained Attorney Gordon to represent her. Defendant urges on appeal that Gordon also committed misconduct because the motion to vacate he filed was "hardly a model of clarity or approach," and Gordon initially failed to obtain an affidavit of fault from Stanton. Those purported deficiencies were addressed when the court allowed Gordon to submit additional evidence (i.e., the declaration from Stanton), and when at the hearing on the motion Gordon clarified for the court that defendant was not seeking mandatory relief based on attorney misconduct. Rather, Gordon argued that defendant's former attorney was surprised to discover a default because she had not seen a request for a default in the court file, which purportedly would warrant vacating the default based on "surprise," within the meaning of discretionary relief provision of Code of Civil Procedure section 473.
However, defendant's failure to prevail after Gordon filed two motions to vacate the default along with proposed answers to the complaint does not establish that Gordon committed positive misconduct. Additionally, there is no affidavit of attorney fault from Gordon; there is only a declaration from Stanton. Absent an affidavit of fault from Gordon, mandatory relief premised on his conduct is not available. (See Luri v. Greenwald, supra, 107 Cal.App.4th at p. 1124.)
Defendant's reliance on Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 197 Cal.App.4th 868 (Standard Microsystems) is unpersuasive. In Standard Microsystems, the court reviewed the trial court's denial of a Code of Civil Procedure section 473 motion to vacate default based on attorney fault. (Standard Microsystems, at p. 896.) There, the defendant's had an option to challenge service (i.e., a motion to quash) but never made an attempt to file such a motion and simply waited for entry of default. (Id. at pp. 898-899.) Such was not the case here, where defendant "authorized" her counsel "to specially appear for the sole purpose" of filing a motion to quash. Defendant's counsel did what she had been retained to do, the motion to quash was heard on the merits, and the motion was denied.
The appellate court in Standard Microsystems also focused on the fact that because the attorney had specifically counseled his client to do nothing in the face of the complaint, such inaction was a "deliberate tactical decision" supporting a finding of attorney fault. (Id. at p. 905; compare Jerry's Shell v. Equilon Enterprises, LLC (2005) 134 Cal.App.4th 1058, 1074 [counsel's strategy decisions do not merit relief under mandatory attorney fault provision of Code Civ. Proc., § 473].) Here, in contrast, defendant's counsel did not admit giving defendant any such advice. In fact, counsel apparently advised defendant to take the affirmative step of moving to quash.
Thus, the trial court did not abuse its broad discretion in denying the motion for relief from default based on alleged attorney fault.
Contrary to defendant's assertion, she was not surprised by entry of the default, and no mistake by counsel actually led to the default. For example, defendant's assertion that she saw a copy of the summons and complaint on her doorstep approximately a week after the date they were served amounts, of course, to actual notice of the lawsuit long before the default was entered against her. After learning about the lawsuit, defendant hired counsel (Attorney Stanton) and instructed counsel to advise her when proof of service was filed and if plaintiff was seeking to enter a default against her. Stanton carried out these instructions by checking the court's online docket and the trial court's physical files for the filing of a proof of service.
Defendant concedes in the declaration supporting her motion to quash that upon discovering the filing of a purportedly false proof of service, she "promptly caused this motion [to quash] to be prepared." According to Stanton's declaration in support of the motion to set aside the default, once defendant learned that there was a proof of service on file, defendant "authorized [Stanton] to specially appear on [defendant's] behalf for the sole purpose of bringing a Motion to Quash Service of the Summons and Compliant." Stanton then made the motion to quash, as instructed.
The trial court found that moving to quash service of the summons and complaint, rather than responding on the merits to the complaint, was a "conscious decision to refuse to respond in any way" to the complaint. No "mistake, inadvertence, surprise, or neglect" (Code Civ. Proc., § 473, subd. (b)) by defendant's counsel led to the default. Stanton's uncontradicted declaration reveals that defendant engaged her as counsel for the limited purpose of filing a motion to quash, and Stanton did exactly what she was retained to do. Such a conscious and apparently strategic decision constitutes no basis for relief under Code of Civil Procedure section 473, subdivision (b). (See Pagarigan v. Aetna U.S. Healthcare of California, Inc. (2007) 158 Cal.App.4th 38, 45; Jerry's Shell v. Equilon Enterprises, LLC, supra, 134 Cal.App.4th at p. 1074.)
Defendant complains that the trial court essentially wrote a "blank check" when calculating damages and asserts she was due an offset for the $16,045 check that she tendered to plaintiff. Defendant, however, ignores a salient fact and misconstrues the relevant statute on damages.
From plaintiff's complaint and the declarations by her and her counsel in support of the default judgment, it was apparent that the $16,045 check tendered by defendant was never cashed. Thus, contrary to defendant's assertion, plaintiff did not trick the court or fail to advise it of the partial payment tendered on the $75,000 security deposit. Because plaintiff never cashed the $16,045 check, defendant was obviously not entitled to any offset from the damages awarded.
Civil Code section 1950.5, subdivision (l), allows for damages for the bad faith retention of a security deposit and provides, in pertinent part, for subjecting "the landlord . . . to statutory damages of up to twice the amount of the security, in addition to actual damages." Here, the complaint alleged that defendant's statement on the retention of the bulk of the security deposit lacked factual support, included items for which deductions were not permitted, and was made in bad faith. Because a default admits the allegations in the complaint (see Sporn v. Home Depot USA, Inc., supra, 126 Cal.App.4th at p. 1303), the uncontroverted evidence before the trial court was that defendant's deductions were improper and in bad faith. Also, the landlord has "the burden of proof as to the reasonableness of the amounts claimed" as deductions to the security deposit (Civ. Code, § 1950.5, subd. (l)), and the defaulting defendant obviously failed to satisfy that burden.
Regarding the amount of damages, the plain language of the statute permitted the court to award actual damages—the $75,000 security deposit—and "in addition" damages of "up to twice the amount of the security" deposit (Civ. Code, § 1950.5, subd. (l))— $150,000 in statutory damages—for a total of $225,000. That was, in fact, the exact amount of damages the trial court awarded.
The trial court acts as a "gatekeeper" and has discretion to award damages within the bounds of those pled in the complaint. (See Heidary v. Yadollahi (2002) 99 Cal.App.4th 857, 865, 868.) The court here did not abuse its broad discretion in awarding damages.
The judgment is affirmed.
We concur.
ASHMANN-GERST, J.
CHAVEZ, J.
