Opinion
E074693
08-05-2021
In re the Marriage of JAY and BOBBIE JEAN GRANT. JAY GRANT, Respondent, v. BOBBIE JEAN GRANT, Appellant.
Law Office of Patrick L. McCrary and Patrick L. McCrary for Appellant. Westover Law Group and Andrew L. Westover for Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. SWD1800093 James T. Warren, Judge. (Retired Judge of the Riverside Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Law Office of Patrick L. McCrary and Patrick L. McCrary for Appellant.
Westover Law Group and Andrew L. Westover for Respondent.
FIELDS J.
I. INTRODUCTION
On December 12, 2019, the trial court denied appellant Bobbie Jean Grant's motion seeking to set aside an order pursuant to Code of Civil Procedure section 473, subdivision (b). The trial court determined that mandatory relief under the statute was not warranted because Bobbie failed to submit an attorney affidavit of fault, and the order that Bobbie sought to set aside was not a default, default judgment, or dismissal. It further determined that discretionary relief was not warranted because the underlying order was entered as a result of inexcusable neglect by Bobbie's attorney at the time.
Intending no disrespect to the parties, we refer to the parties by their first names in order to ease the burden on the reader. (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 475, fn. 1.)
Undesignated statutory references are to the Code of Civil Procedure.
Bobbie appeals, arguing the trial court abused its discretion in denying her mandatory and discretionary relief under section 473. Specifically, Bobbie contends: mandatory relief under the statute should be available where the evidence is substantially similar to an attorney affidavit of fault; mandatory relief should be available for any adverse order that is procedurally similar to a default; and discretionary relief should have been granted because the law favors resolution of disputes on the merits. We find no merit in Bobbie's arguments, conclude the record does not show an abuse of discretion warranting reversal, and affirm the trial court's order.
II. FACTS AND PROCEDURAL HISTORY
Respondent Jay Grant and appellant Bobbie were married in 1983. On January 4, 2018, the trial court entered a judgment of legal separation pursuant to a written settlement agreement executed by both parties.
On January 12, 2018, Jay submitted a petition for dissolution of marriage following entry of the judgment of legal separation. A judgment of dissolution was entered by stipulation of the parties on June 4, 2018.
On May 11, 2018, Bobbie filed a request to set aside the judgment of legal separation pursuant to Family Code section 2121 (2121 motion). After multiple continuances, the matter was set for a contested evidentiary hearing on April 5, 2019, as well as a trial on the issue of spousal support, should the judgment be set aside.
Family Code section 2121, subdivision (a), provides: “In proceedings for dissolution of marriage... or for legal separation of the parties, the court may, on any terms that may be just, relieve a spouse from a judgment, or any part or parts thereof, adjudicating support or division of property, after the six-month time limit of [section 473] has run, based on the grounds, and within the time limits, provided in this chapter.”
When the matter was initially called on April 5, 2019, neither Bobbie nor her counsel of record appeared. Eventually, the trial court contacted Bobbie's counsel via telephone in open court, and Bobbie's counsel ultimately appeared telephonically for the hearing. After an extensive colloquy in which Bobbie's counsel insisted there was no hearing or trial scheduled because the matter had been continued to a future date, counsel ultimately conceded that she had been mistaken and requested a continuance. The trial court denied the request for a continuance and, thereafter, denied Bobbie's 2121 motion. The record does not include a statement of decision with respect to this matter and does not indicate Bobbie's counsel requested a statement of decision.
On May 24, 2019, Bobbie filed a second motion to set aside the January 2018 stipulated judgment. Following a hearing in August 2019, the trial court denied the motion as untimely.
On October 4, 2019, Bobbie filed a request for order seeking to set aside the trial court's April 5, 2019 order denying her 2121 motion. Specifically, Bobbie sought relief pursuant to section 473 (473 motion).
Bobbie also requested her counsel at the time be relieved as her attorney of record for failure to cooperate in her attempt to appeal or set aside the order denying her 2121 motion. However, by the time the motion was heard, Bobbie had obtained a substitution of counsel, and her request to relieve her prior attorney was withdrawn as moot.
On November 18, 2019, the trial court held a hearing on Bobbie's 473 motion and denied the request. In a statement of decision, the trial court concluded that Bobbie was not entitled to mandatory relief under section 473 because she failed to submit an attorney declaration attesting to fault, and the order denying her 2121 motion was not a default, default judgment, or dismissal. Finally, the trial court concluded that discretionary relief under section 473 was unavailable because Bobbie did not request discretionary relief, and the conduct of Bobbie and her prior attorney of record did “not rise to the level of excusable neglect as defined by statute.” Bobbie appeals from this order.
III. DISCUSSION
A. General Legal Principles and Standard of Review
Section 473, subdivision (b), provides that “[t]he court may... relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” Additionally, the statute provides that, “[n]otwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default..., or (2) resulting default judgment or dismissal....” (Ibid.)
“Although this bifurcation is not demarcated in any internal subtitling, it is plainly evident in the textual structure of the statute” that the relief afforded includes “a discretionary provision, which applies permissively, and a mandatory provision, which applies as of right.” (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 25; see Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438 (Martin Potts) [describing statute as providing “two distinct provisions for relief”].) The “purely discretionary” form of relief “depends upon the existence of ‘mistake, inadvertence, surprise, or excusable neglect,' ” and the “mandatory relief” is granted when a party accompanies an application with an attorney's sworn declaration attesting to fault. (Solv-All v. Superior Court (2005) 131 Cal.App.4th 1003, 1007-1008.)
“ ‘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.' ” (McClain v. Kissler (2019) 39 Cal.App.5th 399, 414.) “When conducting an abuse of discretion review, appellate courts consider (1) whether the trial court's factual findings are supported by substantial evidence, (2) whether the trial court followed applicable legal principles, and (3) whether the trial court reasonably exercised its discretionary authority-that is, whether any judge reasonably could have made such an order.” (In re Marriage of Hein (2020) 52 Cal.App.5th 519, 529.)
B. The Trial Court Did Not Abuse Its Discretion in Denying Mandatory Relief
Here, the trial court denied mandatory relief on two independent grounds: (1) Bobbie failed to submit an attorney affidavit of fault as required by the statute, and (2) the order that Bobbie sought to set aside did not qualify for mandatory relief under the statute. We find no abuse of discretion in the trial court's denial of mandatory relief on these grounds.
1. An Affidavit of Attorney Fault Is Required When Seeking Mandatory Relief
Bobbie admits she did not submit an attorney affidavit attesting to fault when seeking mandatory relief under section 473, subdivision (b). However, Bobbie argues she is still entitled to mandatory relief under the statute because she submitted a transcript of the April 5, 2019 hearing, which shows that her attorney admitted, in open court, to making a mistake. Bobbie argues this should entitle her to mandatory relief because such evidence is the “equivalent” of, or “in substantial compliance with, ” the requirements of the statute. We disagree.
The opening brief does not specifically frame Bobbie's argument as related to the trial court's denial of mandatory relief. Nevertheless, since the statutory provisions pertaining to an attorney affidavit and limiting relief to a default, default judgment, or dismissal appear only in the portion of the statute addressing mandatory relief, we interpret Bobbie's arguments as a claim the trial court abused its discretion in denying mandatory relief.
Bobbie has cited no authority for the proposition that evidence other than an attorney's sworn affidavit attesting to fault may trigger the mandatory relief provisions of section 473, subdivision (b). Instead, it appears well established that “[r]elief under the mandatory provision of section 473, subdivision (b), is available only when the application is accompanied by ‘an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise or neglect.' ” (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 608-609 [attorney affidavit is “indispensable”]; see Las Vegas Land & Development Co., LLC v. Wilkie Way, LLC (2013) 219 Cal.App.4th 1086, 1092 [concluding there is no exception to attorney affidavit requirement for mandatory relief under § 473].) More importantly, even assuming that some form of evidence other than an attorney affidavit of fault might satisfy the requirements for mandatory relief, we conclude the evidence submitted by Bobbie in this case would not be sufficient.
First, the statement by Bobbie's counsel, while made in open court, was not made under oath. Thus, the statement simply was not the functional “equivalent” of a sworn affidavit. (See Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1173 [“Argument of counsel is not evidence.”].)
Second, the statement by Bobbie's counsel was not substantively sufficient to satisfy the requirements of the statute. For purposes of section 473, subdivision (b), an attorney affidavit must do more than generally admit to a mistake in the abstract. Instead, the affidavit must admit that the attorney's mistake or neglect caused the default, dismissal, or adverse judgment the party wishes to set aside. (§ 473, subd. (b) [mandatory relief not warranted where “default or dismissal was not in fact caused by the attorney's mistake”]; see Milton v. Perceptual Dev. Corp. (1997) 53 Cal.App.4th 861, 867 [The requirement is “not only a credibility testing device” but “also ‘a causation testing device.' ”].) Here, during the April 5, 2019 hearing, while Bobbie's attorney stated she had made a mistake, she made this statement prior to the denial of Bobbie's 2121 motion. Thus, in context, the statement by Bobbie's attorney could not possibly constitute an admission that her mistake caused the denial of the motion because the trial court had yet to issue its order denying the motion at the time the statement was made.
We therefore conclude Bobbie's argument on this point is without merit. By its very terms, section 473, subdivision (b), requires an attorney's sworn affidavit in order to obtain mandatory relief, and the statute contains no exceptions. Further, even if we were to recognize an exception based upon “substantial compliance, ” the evidence presented by Bobbie in this case would not meet that standard. Thus, the trial court did not abuse its discretion when it denied mandatory relief under section 473, subdivision (b), on this ground.
2. Mandatory Relief Only Applies to Defaults, Default Judgments, and Dismissals
Bobbie also argues the trial court abused its discretion in concluding she was not entitled to mandatory relief because the order denying her 2121 motion was not a default, default judgment, or dismissal. On its face, the April 5, 2019 order at issue here is not a default, default judgment, or dismissal. Despite this uncontested fact, Bobbie argues the order was the “procedural equivalent” of a default because she did not have her “day in court” with respect to that motion. We disagree.
While there is some authority for the proposition that the mandatory relief under section 473, subdivision (b), is available in situations “analogous” to a default, the prevailing view among the Courts of Appeal is that the mandatory provisions of the statute apply strictly to defaults, default judgments, or dismissals. (See The Urban Wildlands Group, Inc. v. City of Los Angeles (2017) 10 Cal.App.5th 993, 999-1000 (Urban Wildlands) [comparing divergent line of cases]; Shayan v. Spine Care & Orthopedic Physicians (2020) 44 Cal.App.5th 167, 170 (Shayan) [“There is some older case law support for this ‘analogous' approach. But more recent cases have hewed to the statute as the Legislature wrote it.”].) This court does not appear to have any prior published decisions expressly adopting either view.
Upon consideration of the matter, we agree with the succinct and cogent analysis set forth in Shayan, supra, 44 Cal.App.5th 167. As explained by our colleagues in the Second District Court of Appeal: “[T]he plain language of [section 473, subdivision (b), ] is unambiguous and controlling. It would be a disservice to embroider this language with freeform extensions to ‘analogous' situations. Lawyers are pretty good at inventing analogies. This provision sees heavy use in trial courts. In the long run, everyone benefits from clear, exact, and predictable rules of civil procedure. This statute, as written, gives a clear, exact, and predictable rule. The Legislature can amend it if the coverage is wrong. Until the Legislature acts, the statute's words settle the matter.” (Id. at pp. 170-171.) In our view, this reasoning is sound, and we decline to interpret section 473, subdivision (b), in a manner that extends mandatory relief to undefined situations “analogous” to a default.
Additionally, even if section 473 were interpreted to cover “analogous” situations not expressly referenced in the statute, such an interpretation would not assist Bobbie in this case. With respect to defaults, section 473, subdivision (b), expressly states that the court shall vacate “any (1) resulting default entered by the clerk against [the attorney's client], and which will result in entry of a default judgment....” (Italics added.) The statute is clear that, even in the context of defaults, mandatory relief is limited to a default that will result in entry of a default judgment. Thus, while any proceeding taken in a party's absence is in some sense analogous to a default, for an adverse order to constitute the “procedural equivalent of a default, ” for purposes of mandatory relief under section
473, subdivision (b), such an order must result in the entry of an adverse judgment.
Notably, the cases cited by Bobbie in support of extending mandatory relief to situations “analogous” to a default all involved orders that led to entry of an adverse judgment against the party seeking relief. (See In re Marriage of Hock & Gordon-Hock (2000) 80 Cal.App.4th 1438 [entry of judgment on reserved issues when party and attorney failed to appear for trial], overruled by Urban Wildlands, supra, 10 Cal.App.5th at p. 1000; Yeap v. Leake (1997) 60 Cal.App.4th 591 [entry of judgment as the result of attorney's failure to appear at arbitration and failure to request trial de novo]; Avila v. Chua (1997) 57 Cal.App.4th 860 [failure to timely oppose summary judgment motion resulted in adverse judgment], overruled by Urban Wildlands, supra, at p. 1000.)
Here, the adverse order at issue was the denial of Bobbie's 2121 motion. However, the stipulated judgment in this action had already been entered more than a year prior to this order. Thus, the trial court's order of April 5, 2019, did not “result in entry” of an adverse judgment such that it constituted the “procedural equivalent of a default” for purposes of section 473, subdivision (b), even if we were to interpret the statute expansively to extend mandatory relief to situations “analogous” to a default. The trial court did not abuse its discretion when it denied mandatory relief under section 473, subdivision (b), on this ground.
C. Reversal for Denial of Discretionary Relief is Not Warranted
Alternatively, Bobbie contends the trial court abused its discretion in denying discretionary relief under section 473, subdivision (b). The only argument she advances on appeal is that the trial court failed to properly consider the judicial policy favoring resolution of disputes on the merits. We disagree that this is sufficient to show an abuse of discretion, and we conclude that reversal is not warranted on this record.
We acknowledge that the trial court's statement of decision is not perfect. The trial court's finding that Bobbie did not request discretionary relief under the statute does not appear supported by substantial evidence, as both her motion and declaration appear to explicitly request alternative relief based upon her own mistake. Additionally, while generally true that inexcusable neglect by an attorney does not warrant discretionary relief (see Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258 (Zamora); Huh v. Wang (2007) 158 Cal.App.4th 1406, 1419), “[a]n exception to this rule allows relief where the attorney's neglect, although inexcusable, was so extreme as to constitute misconduct effectively ending the attorney-client relationship.” (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 682; see Buckert v. Briggs (1971) 15 Cal.App.3d 296, 301 [upholding discretionary relief where attorney not only failed to inform client of the trial date but attorney also failed to appear at trial].) It is unclear whether the trial court was aware of this exception when exercising its discretion. However, these issues were not raised in Bobbie's opening brief, and “[i]t is not this court's role to construct arguments that would undermine the lower court's judgment and defeat the presumption of correctness”; and “when the appellant fails to support an issue with pertinent or cognizable argument, ‘it may be deemed abandoned and discussion by the reviewing court is unnecessary.' ” (Needelman v. DeWolf Realty Co., Inc. (2015) 239 Cal.App.4th 750, 762.)
1. The General Policy Favoring Determination on the Merits Cannot Itself Compel Discretionary Relief
As we have already explained, section 473, subdivision (b), provides for two, distinct forms of relief. “[T]he mandatory relief provision is narrower in scope insofar as it is only available for defaults, default judgments, and dismissals, while discretionary relief is available for a broader array of orders.” (Martin Potts, supra, 244 Cal.App.4th at p. 438.) The mandatory relief provision was intended to be a “narrow exception to the discretionary relief provision....” (Zamora, supra, 28 Cal.4th at p. 257; see Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 723.) By definition, any request for mandatory relief under the statute necessarily involves a situation in which there has been no determination on the merits. (San Diego Sav. Bank v. Goodsell (1902) 137 Cal. 420, 429 (dis. opn. of Temple, J.) [“A default is a technical advantage taken of an absent party without a consideration of the merits.”]; see Urban Wildlands, supra, 10 Cal.App.5th at pp. 1001-1002.)
Given this understanding of the statutory scheme, it is apparent that the preference for resolution of disputes on the merits cannot, standing alone, justify the granting of discretionary relief under section 473, subdivision (b). Such an interpretation would effectively render the mandatory provisions of the statute all but meaningless, since every default, default judgment, or dismissal covered by the mandatory provision necessarily involves a determination without consideration of the merits. “A court should not lightly adopt an interpretation of statutory language that renders the language useless in many of the cases it was intended to govern” (Williams v. Superior Court (1993) 5 Cal.4th 337, 354), and we decline to do so here.
2. The Record Establishes Sufficient Ground to Affirm the Trial Court's Order
While we have rejected Bobbie's claims of error on appeal, we note that, even if Bobbie has identified some error in the trial court's statement of decision, the record shows reversal would not be warranted. As Jay points out in his respondent's brief, the trial court's denial of discretionary relief may be affirmed on the ground that Bobbie failed to act diligently in bringing her request. We agree.
Even where “[a] statement of decision may be wrong, ... the judgment must be affirmed ‘ “if it is correct on any theory....”' ” (El Escorial Owners' Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1352; see In re Marriage of Brooks (2019) 33 Cal.App.5th 576, 593 [“Even if the trial court articulates the wrong reasons when arriving at a correct conclusion, we will presume the judgment correct and affirm it on any ground supported by the evidence, whether articulated by the trial court or not.”].) Our Supreme Court has explicitly applied this principle to a trial court's order denying a motion to set aside under section 473, subdivision (b). (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980-981 [“[W]e cannot undo the effect of the [trial court's] ruling or the ensuing judgment on the ground that the court may have misapplied section 473 as long as any other correct legal reason exists to sustain either act.”].)
Here, Jay opposed the request for discretionary relief in the trial court on multiple, independent grounds. Jay argued both in written opposition and at the time of hearing that discretionary relief should be denied for lack of diligence in bringing the 473 motion because Bobbie waited until the very last day of the six-month period to request relief.
A finding that Bobbie was not diligent in bringing a request for relief is a valid ground for denying discretionary relief under section 473. “ ‘Under [section 473], in addition to being made within the six months' period, the application must be made within “a reasonable time, ” and what is a reasonable time in any case depends upon the circumstances of that particular case.' ” (Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 528 [suggesting that “an unexplained delay of anything approaching three months after full knowledge” is not reasonable]; Lee v. Wells Fargo Bank (2001) 88 Cal.App.4th 1187, 1200 [“[A] party who moves for relief within six months may still be denied if the trial court concludes that he failed to seek relief within a reasonable time.”]; Kendall v. Barker (1988) 197 Cal.App.3d 619, 625 [“Unexplained delays of more than three months in seeking relief... generally result in denial of relief”]; Caldwell v. Methodist Hospital (1994) 24 Cal.App.4th 1521, 1525 [delay of over 3 months justified denial of relief]; Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1185 [waiting until last day of 6-month period required denial of relief].)
Despite being a contested issue, the trial court's statement of decision is silent on the issue. However, “when the court's statement of decision is ambiguous or omits material factual findings, a reviewing court is required to infer any factual findings necessary to support the judgment.... [¶]... [I]f the trial court issues a statement of decision, ‘a party claiming omissions or ambiguities in the factual findings must bring the omissions or ambiguities to the trial court's attention' pursuant to section 634.” (Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 494; see In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134.) Where a party fails to bring ambiguities or omissions to the trial court's attention, “the reviewing court will infer the trial court made every implied factual finding necessary to uphold its decision, even on issues not addressed in the statement of decision. The question then becomes whether substantial evidence supports the implied factual findings.” (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 48 [italics added]; see In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 49-50.)
Here, Bobbie did not request a statement of decision and, further, did not bring to the trial court's attention any ambiguity or omission on the issue of her timeliness in requesting relief. Thus, because the issue was clearly contested by the parties, we must assume the trial court made an implied finding that Bobbie was not diligent in bringing her request for relief.
An implied finding that Bobbie was not diligent is clearly supported by substantial evidence in the record. Bobbie attorney was present telephonically at the time of the April 5, 2019 hearing when the trial court orally stated it was denying the 2121 motion. Additionally, Bobbie brought a subsequent motion in May 2019, again seeking to set aside the judgment. Bobbie was personally present at the hearing on this subsequent motion, at which time Jay's counsel, the trial court, and Bobbie's attorney all acknowledged the trial court had previously denied the 2121 motion. Further, in her declaration requesting relief, Bobbie admitted she had retained independent appellate counsel to file an appeal from the order. Despite this, Bobbie waited until the last day of the six-month statutory period to bring her 473 motion, which is the subject of this appeal.
We acknowledge that Bobbie claimed her attorney of record at the time was uncooperative in filing her 473 motion. While this is some evidence the trial court could have relied upon to find that Bobbie's delay was warranted, this is not relevant for purposes of determining whether substantial evidence supports a contrary implied finding. “When applying the substantial evidence test, we must uphold a judgment even if the evidence supporting it is contradicted.” (Minnegren v. Nozar (2016) 4 Cal.App.5th 500, 513.) Moreover, this would serve as a partial explanation at best. It would not explain why Bobbie could not file her 473 motion earlier than the very last day to do so, given the fact that the motion Bobbie ultimately filed was not accompanied by an attorney declaration.
Thus, regardless of any inconsistencies that might appear in the trial court's statement of decision, the record contains substantial evidence in support of an implied finding that Bobbie was not diligent in requesting relief. Such a finding supports denial of discretionary relief under section 473, subdivision (b), and, as such, we find no grounds for reversal.
IV. DISPOSITION
The order is affirmed. Respondent to recover his costs on appeal.
We concur: McKINSTER Acting P. J. Miller J.