McKINSTER, J.
Defendants and appellants Jose Becerra and Charlie Becerra appeal after the trial court denied their motions to set aside default judgments against them in favor of plaintiffs and respondents Jose Sarabia and Eloiza Meza. After review, we affirm the trial court's ruling denying defendants' motions to vacate the default judgments.
Defendant Jose Becerra owns a car sales business, Jiquilpan Auto Sales. Defendant Charlie Becerra is Jose Becerra's son. Plaintiffs initially met defendants in April 2004 when plaintiffs went to Jiquilpan to purchase an automobile. Plaintiffs struck up a friendship with defendants, and began lending money to defendants to help capitalize the car business.
According to plaintiffs' complaint, the sums lent included:
On June 25, 2008, plaintiffs filed a complaint alleging five causes of action against defendants: First, breach of the written contract ($50,000 principal) of November 2004. Plaintiffs alleged that defendants failed to repay the loan when due on December 31, 2005. Then, "On, or about, May 27, 2008," plaintiffs had asked defendants to perform their obligations under the contract, but defendants refused. Plaintiffs alleged that the $50,000 principal and $1,729.50 in interest was due and unpaid under the 2004 written contract.
Second, plaintiffs alleged breach of the written contract of August 2006. Plaintiffs had lent defendants $30,000 to be paid back in two months, but in November 2006, defendants breached by failing to pay the principal ($30,000) and interest ($2,000).
Third, plaintiffs alleged a cause of action for money had and received, encompassing all the agreements for all the money lent. Plaintiffs claimed to have lent defendants a total sum of $594,355. Defendants had made a partial principal payment on all the indebtedness of $90,000 and interest payments of $107,175. The last payment was made on April 10, 2008. Plaintiffs claimed a principal sum owing of $524,855, plus interest at 10 percent, running from April 27, 2008.
The fourth cause of action was for fraud. Plaintiffs alleged they had been induced over the course of years between 2004 and 2008, to lend defendants $594,355, on promise of repayment. Only $90,000 was repaid. Plaintiffs were also led to believe, by a supplemental agreement in December 2007, that defendants would make regular interest payments of $13,500 a month, but defendants failed to make any interest payments after April 2008. Plaintiffs again claimed damages of $524,855 principal, plus interest at the legal rate.
The fifth cause of action stated a book account for the sum of $504,355 in unpaid principal,
The prayer for relief requested $51,729.50 in damages plus interest on the first cause of action; $30,000 damages plus interest on the second cause of action; $524,855 plus interest on the third cause of action; $524,855 plus interest on the fourth cause of action; and $504,355 plus interest on the fifth cause of action.
The proofs of service of the complaint showed Jose Becerra was served personally on June 27, 2008, Charlie Becerra was served personally on June 30, 2008, and the papers for Jiquilpan Auto Sales were given to Gabriella Becerra, a person authorized to receive service, on June 27, 2008.
Plaintiffs filed requests for default on August 11, 2008, after defendants failed to file responsive pleadings. A default hearing was held on October 27, 2008; the court granted a default judgment against all defendants. The clerk's transcript shows default judgments filed against defendants on December 4, 2008, and served on November 24, 2008, although the register of actions does not reflect the filing of any such judgments.
On December 10, 2008, however, each defendant moved to set aside the default judgment on grounds of mistake, inadvertence, surprise and excusable neglect under Code of Civil Procedure section 473, subdivision (b).
Defendant Jose Becerra's motion asserted that, although plaintiffs had lent a total of $594,355 since November 2004, defendants had repaid $418,378. There were written agreements for $50,000 in November 2004 and $30,000 in August 2006, but otherwise there were no further written agreements on any of the sums lent. In May 2008, there was a meeting between the parties at which plaintiffs demanded that defendants sign an additional paper relating to the loans, but defendants refused. Plaintiffs' document indicated that only $90,000 had been repaid, but defendants had actually paid $418,378. The document also attempted to include additional interest obligations, and it sought to bind defendant Charlie Becerra, who was not associated with the auto sales business, and who did not receive or benefit from any of the borrowed moneys. A judgment after default hearing was allegedly entered on November 20, 2008, in the sum of $524,855 principal, $26,242.75 in prejudgment interest, $12,062.50 in attorney fees, and $997 in costs, for a total judgment of $564,157.62. However, when defendant Jose Becerra was served with the summons and complaint, he did not understand the nature of the proceeding or his obligation to respond. He asserted that he did not read English, or understand much English. Because he had already made so many payments to plaintiffs, he did not expect to be sued; also because of language difficulties, he did not understand the complaint and thus failed to consult with counsel. He asserted, "At no time was I aware that I had to do anything or that there were specific time constraints." He consulted with counsel after he received notice of his default in August 2008.
Defendant Charlie Becerra's motion stated that he is Jose Becerra's son, and that he is not an owner of the auto sales business, nor did he receive any of the loan proceeds, or any benefit from the moneys that plaintiffs had lent to Jose Becerra. Charlie Becerra averred that he is wrongly named as a defendant, because he had no interest in his father's auto sales business and did not participate in any of the loan contracts, and never benefitted from any of the moneys lent. He received the summons and complaint on July 9, 2008, but did not understand what they were. He thought that he "would receive further documents explaining what I had to do and even thought that such explanation would be provided in both English and Spanish. At no time was I aware that I had to do anything or that there were specific time restraints."
Defendant Jose Becerra responded for defendant Jiquilpan Auto Sales, averring that Jiquilpan was a fictitious name under which he operated a used car sales business as sole owner. Otherwise, he repeated the averments in his own motion to vacate the default judgment, acknowledging the loans but asserting repayment of almost $425,000, rather than the $90,000 principal claimed by plaintiffs. Defendant Jose Becerra acknowledged also both a prelitigation meeting in May 2008, when he refused to sign a document stating that only $90,000 had been repaid, and receipt of the summons and complaint for Jiquilpan on July 19, 2008. He repeated his assertion that he "did not understand what these papers were or that I was required to do anything in response to [them]. I do not speak much English and I am unable to read English. Since I had made so many payments to Plaintiffs, I did not expect [them] to sue me and I did not comprehend and understand the documents that I received, and therefore failed to consult with legal counsel regarding the filing of an answer to the complaint. At no time was I aware that I had to do anything or that there were specific time restraints." He further stated, "Had I known the nature of the documents and that Plaintiffs were attempting to obtain a judgment against me for over $500,000, when I had already paid them almost $425,000 in payments over the past 36 months, I certainly would have responded."
Defendants Jose Becerra and Charlie Becerra also submitted supplemental declarations in support of the motions to vacate default judgment.
Jose Becerra corrected his earlier declaration, averring that the meeting with plaintiffs took place on July 28, 2008, rather than in May 2008. Defendant had been served with the complaint about 30 days before this meeting. Plaintiffs' attorney had personally called defendant Jose Becerra to arrange a meeting to resolve the lawsuit; these telephone conversations were conducted in Spanish. However, Jose Becerra averred that he asked whether he should bring a lawyer to the meeting, but plaintiffs' counsel told him he did not need one and that they could resolve the issues themselves.
At the meeting, Jose Becerra spoke mostly with plaintiffs' attorney. Plaintiffs' attorney wanted to know whether defendant intended to repay the loans, but defendant said that his business was slow and he would need more time before he could begin to pay. Plaintiffs' counsel allegedly assured defendant Jose Becerra, at the close of the meeting, that he would ask his clients about defendant's request for more time to pay, and that he would call Jose Becerra when he had a response.
The attorney did not call back, however, and did not return Jose Becerra's calls until after the defaults had been entered. When Jose Becerra was finally able to speak to plaintiffs' attorney, the attorney again said he would speak to his clients and get back to Jose Becerra with a response. The attorney did not explain that he had already entered defendant's default, so "his statements to me gave me further belief that we were continuing to work on a resolution."
Defendant Jose Becerra did not receive any notice of the default prove-up hearing. In August 2008, plaintiffs applied for an ex parte writ of attachment, again without notice to defendants. It was only after plaintiffs attempted, unsuccessfully, to levy the writ of execution against the car dealership owned by defendant's brother that defendant Jose Becerra realized that plaintiffs "were not trying to work with me to resolve the issues as previously communicated. Instead, from the time of the meeting on July 28, 2008 to late September, 2008 they took every action that they could (much without any notice to me) to obtain a judgment against me and execute on the judgment."
Defendant Jose Becerra retained an attorney in early November 2008, but was unable to pay the retainer immediately, so that the motions to vacate the default judgment were not filed until December 10, 2008. Defendant Jose Becerra averred, "I truly believed attorney Garcia when he told me that it was not necessary that I obtain a lawyer. I also believed [the attorney] when he said that he would communicate my request for additional time to repay outstanding loans to his clients and then get back to me. I also truly believe [the attorney] when he said that we could get the issues resolved without me having to obtain a lawyer."
Defendant Charlie Becerra's supplemental declaration averred that the meeting referenced in his earlier declaration had taken place in late July 2008, but he did not attend the meeting, believing that his father was taking care of the matter.
Plaintiffs opposed the motions to vacate the default judgments. Plaintiff Jose Sarabia provided a declaration averring that, although defendants had made payments on the numerous loans, they stopped paying in May 2008. In June 2008, plaintiffs asked defendant Jose Becerra to sign a document commemorating all the loans, but he refused. It was then that plaintiffs consulted counsel to commence the lawsuit. Plaintiffs included defendant Charlie Becerra because he is the son of defendant Jose Becerra, and he was in charge of Jose Becerra's business whenever Jose Becerra was not present. "Charlie many times received the money we loaned Jiquilpan and would sign interest checks to us when the defendants were making payments. Charlie is part of the business of Jiquilpan Auto Sales."
Plaintiffs filed their suit and had the papers served on all three defendants. At the meeting on July 28, 2008, plaintiffs met with their attorney, defendant Jose Becerra, and defendant's brother Luis Becerra. Defendant refused to sign a paper commemorating that plaintiffs had lent the money to defendants. Instead, he "just wanted my wife and [me] to take [his] word that they were going to pay us back over $500,000.00." Moreover, "When we met with Jose Becerra it was clear and obvious to him that he, Jiquilpan Auto Sales and his son had been sued by [plaintiffs]. In fact, Jose Becerra had the lawsuit in his hands. I remember. The only reason Jose Becerra and Luis Becerra were meeting with us in Mr. Garcia's office was because we had sued [defendants]."
Plaintiffs' opposition asserted that defendants' motions to vacate the judgments had failed to demonstrate any mistake, inadvertence, surprise or excusable neglect, within the meaning of Code of Civil Procedure section 473, subdivision (b). Defendants were properly served with the summons and complaint, and were fully aware of the meaning of the papers, as indicated by defendant Jose Becerra's participation in the meeting of July 28, 2008. To the extent that defendants claimed not to understand the papers because they only understood Spanish, the claim was refuted on the face of the summons, which bears a Spanish language translation of the demand. The meeting of July 28, 2008, was conducted entirely in Spanish. Plaintiffs' attorney also submitted a declaration disputing defendants' supplemental declarations. The attorney flatly denied telling Jose Becerra he should not bring a lawyer to the meeting; rather, he emphasized that he represented plaintiffs' interests. The attorney averred that "one of the biggest reasons Jose Becerra did not want to sign anything at our meeting was because he wanted a lawyer to look at anything he signed." The attorney did return Jose Becerra's telephone calls and spoke to him at least twice before the defendants' defaults were taken. He even advised Jose Becerra that he would take steps in the lawsuit to protect plaintiffs' interests.
Defendants filed a reply, repeating their assertion that they believed plaintiffs' counsel was attempting to resolve the matter, "when the defaults were secretly entered against them," and that they relied on the attorney's representations he would advise them whether plaintiffs would allow additional time to make the payments, but the attorney "refused to return calls and during that period of time `snuck' in the defaults."
The court heard the motions to vacate the default judgments on March 25, 2009, and, after taking the matter under submission, issued a ruling denying the motions. Defendants filed a notice of appeal on May 20, 2009.
"[A] trial court order denying relief under [Code of Civil Procedure] section 473, subdivision (b) is `"scrutinized more carefully than an order permitting trial on the merits."' (H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1368.) `Because the law favors disposing of cases on their merits, "any doubts in applying section 473 must be resolved in favor of the party seeking relief from default [citations]."' (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980.) But that said, `[a] motion to vacate a default and set aside judgment (§ 473) "is addressed to the sound discretion of the trial court, and in the absence of a clear showing of abuse . . . the exercise of that discretion will not be disturbed on appeal." [Citations.] Moreover, all presumptions will be made in favor of the correctness of the order, and the burden of showing abuse is on the appellant. [Citation.]' (Lint v. Chisholm (1981) 121 Cal.App.3d 615, 619-620; accord, In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 118 [`The standard for appellate review of an order denying a motion to set aside under section 473 is quite limited. A ruling on such a motion rests within the sound discretion of the trial court, and will not be disturbed on appeal in the absence of a clear showing of abuse of discretion, resulting in injury sufficiently grave as to amount to a manifest miscarriage of justice'].)" (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1200.)
Defendants moved below to set aside the defaults and default judgments on the ground of mistake, inadvertence, surprise and excusable neglect, under Code of Civil Procedure section 473, subdivision (b).
Defendants claimed, first, that they did not read English or speak much English, and thus they failed to understand the import of the papers that were served upon them. The court specifically ruled that defendants'"sophistic declaration which indicates that [they] did not understand that [they were] required to do anything in response to the summons and complaint due to [their] inability to comprehend English is belied by the fact that there is a Spanish translation of the Summons which was served on the defendant[s]."
On appeal, defendants dispute this ruling by the court, maintaining that "the court records do not indicate that the summonses in question were in Spanish." To the contrary, however, the record clearly reflects that the demand of the summons appears in both English and Spanish on the face of the summons, plainly advising that defendants had 30 calendar days to file a written response with the court, and advising defendants that they may wish to consult with a lawyer or take advantage of other legal resources.
Defendants' alternative claim was that they were lulled into a false sense of security by representations of plaintiffs' counsel, to the effect that: the parties were attempting to negotiate a settlement of the case; defendants did not need a lawyer; counsel would consult his clients about defendants' request for more time to repay; and counsel would contact defendants to let them know the result, but he never did so. Under such circumstances, as alleged by defendants, they were unaware that plaintiffs would proceed to take their defaults.
Defendants' version of events was disputed by plaintiffs and their counsel. Plaintiffs' counsel averred that he never told defendants not to consult with counsel. He did return defendants' telephone calls and spoke to Jose Becerra at least twice before the defaults were taken. He advised Jose Becerra that, because no agreement was reached, he would proceed to protect his clients' interest, and Jose Becerra simply said, "OK."
The trial court below credited plaintiffs' version of events. On appeal, we defer to this credibility determination of the trial court. (See Waller v. Waller (1970) 3 Cal.App.3d 456, 461 ["`In those cases where the issues are tried on affidavits, the rule on appeal is that the affidavits which favor the contentions of the prevailing party establish the facts stated therein, and all facts which reasonably may be inferred therefrom. . . . When there is a conflict in the facts presented by affidavits, the determination of those facts by the trial court will not be disturbed on appeal'"].)
For the first time on appeal, defendants assert that the default judgments are void on their face, because the record fails to show that a request for default judgment, with amounts stated, was filed or served on defendants. The register of actions states, however, that plaintiffs filed a request to set an uncontested matter on their complaint, on August 11, 2008. In addition, Code of Civil Procedure section 580, subdivision (a), provides that: "The relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint, in the statement required by Section 425.11 [i.e., the statement of damages] . . . ." Here, the body and the prayer of the complaint specifically set forth the amounts requested. No further statement was needed to satisfy the due process requirements of notice and fundamental fairness. (See Stein v. York (2010) 181 Cal.App.4th 320, 325 [the primary purpose of the section is to guarantee defaulting parties adequate notice of the maximum judgment that may be assessed against them].)
According to the evidence, both that uncontested and that credited by the trial court, defendants were properly served with the summons and complaint. The summons contained an express warning in Spanish of the legal nature of the documents and the time required for a written response, including that the written response must be in proper legal form. The advisement, in both English and Spanish, informed defendants that they may wish to consult legal counsel, and provided references for obtaining such help. Defendants were well aware of the nature of the documents and what was at stake, as evidence by the post-service meeting with plaintiffs and plaintiffs' counsel. This meeting was conducted entirely in Spanish, so defendants could have had no illusions about what was at stake. As to defendants' representations that they were lulled into believing that there was an agreement not to take their defaults because of ongoing settlement negotiations, the evidence on that point was directly disputed, and the trial court did not believe defendants.
Defendants were served in July 2008. After abortive settlement efforts, they did nothing further. Defendants received notices of their defaults in August, and did nothing. They were aware of the unsuccessful attempt, in September, to levy on the car dealership owned by defendant Jose Becerra's brother, and defendants still did nothing. Defendants supposedly retained counsel in early November, but did not file a motion for relief until December 10, 2008, after the default judgments were filed. Their claim that they did not understand the proceedings was belied by the facts. There was no showing of mistake, inadvertence, surprise or excusable neglect. Defendants bore the burden of establishing grounds for relief (In re Marriage of Kieturakis (2006) 138 Cal.App.4th 56, 79), but they have singularly failed to carry that burden in any manner.
The trial court therefore did not abuse its discretion in denying defendants' motions for relief from the defaults and default judgments.
The orders denying defendants' motions for relief from default and default judgment are affirmed.
Plaintiffs and respondents are entitled to costs on appeal.
RAMIREZ, P. J. and KING, J., concurs.
