Opinion
A130276
11-14-2011
SALLY STEINHART, Plaintiff and Appellant, v. KATHLEEN CURRIA, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Sonoma County Super. Ct. No. SCV239526
Sally Steinhart sued Kathleen Curria over funds she claimed Curria misappropriated from Steinhart and her minor son. A default was entered against Curria, but the court set it aside and the case proceeded to a jury trial and defense verdict. Steinhart contends the trial court erred when it set aside Curria's default, and asserts that she is entitled to judgment as a matter of law on the claims she prosecuted as guardian ad litem on her son's behalf. Neither claim has merit. Accordingly, we affirm the judgment.
BACKGROUND
This lawsuit evolved from what was once an apparently strong friendship, the attenuated deterioration of which we need not, for the most part, set forth in detail. The salient facts, stated in accord with the appropriate standard of review (see Romer, O'Connor & Co. v. Huffman (1959) 171 Cal.App.2d 342, 347 (Romer)), are as follows.
For several reasons, sorting out the competing positions of the parties poses unusual challenges. Both Steinhart, who is an attorney, and Curria, who is not, represented themselves in propria persona at trial. Moreover, while this court has the benefit of an appellant's opening brief from Steinhart, Curria has not filed a responsive brief.
Steinhart and Curria met and became friends in 1992. Steinhart's son, Logan, was born in October 1993. Sometime in 1994 Steinhart moved with Logan into the San Francisco home Curria shared with her partner, Jacqueline Cresswell.
Curria initially worked a night shift so that she could care for Logan while Steinhart worked during the day, but within a year or two Steinhart quit her law practice to stay at home with her son. Curria added Logan to her own health insurance plan and covered most household expenses. She repeatedly asked Steinhart to help with the insurance premiums and other household expenses such as the mortgage, property taxes, utilities, and groceries, but Steinhart would put her off with promises to even things up with Curria when she "ma[d]e it big."
In 2001 Curria, Steinhart and Cresswell decided to move together to Santa Rosa. Curria sold her San Francisco home and purchased a house in Santa Rosa large enough for the three of them and Logan. She made a $500,000 down payment, and she, Cresswell and Steinhart agreed to contribute equally to the $3,000 monthly mortgage payment. Again, despite repeated requests, Steinhart did not contribute financially to the household or help maintain it. Curria hired a series of cleaning services, but each of them quit because Steinhart would not let them clean to their standards. So Cresswell did the housecleaning, but even then Steinhart would not allow her to use cleaning products or a vacuum cleaner or throw away moldy food. Tension, disagreements and fights ensued.
In 2002 or 2003 Curria discovered Steinhart had opened two credit cards in her name and defaulted on the payments. She confronted Steinhart, who confessed to opening and using the charge accounts and explained that she was broke and facing foreclosure on her house in San Francisco. Curria and Cresswell decided they would help Steinhart by lending her their truck and giving her money for gas so she could prepare her house for sale. Concerned that Steinhart was tampering with their mail, they started having it delivered to a post office box instead of their Santa Rosa home.
Steinhart sold her house in 2003. She received sale proceeds of $213,617, which she had her bank issue in a cashier's check payable to Logan. According to Steinhart (whose narrative varies significantly from Curria's), she wanted to open an account for the funds in Logan's name alone, but was told an adult also had to be on the account. So, she asked Curria to open a joint account for Logan, with the understanding that it was Logan's money. Steinhart told Logan the money was a loan, not a gift, and she had him write her an IOU for it.
Steinhart testified that she intended to leave the account untouched, but in the summer of 2004 she lost her part-time job and needed money. At her request, Curria would write her checks drawn on the account. Steinhart also used money from the account to buy a new car, and at one point she loaned Cresswell approximately $23,000 from the account to buy a boat. Cresswell agreed to repay the money, but only repaid $2,000 of it.
According to Curria, Cresswell stopped repaying the loan because they discovered Steinhart was withdrawing money from a different joint account Curria had opened with Logan.
Sometime in the summer of 2004 Steinhart opened a bank statement and discovered money was missing from the account. She confronted Curria, who explained she had used the money for an emergency and was going to repay it when she refinanced the house. Then the bank statements stopped coming to the house, and Curria would stonewall whenever Steinhart asked to see them. In October 2005, Curria told Steinhart that "the money is all gone, and I have joined Gamblers Anonymous."
Curria admitted that she withdrew money from the joint account, but denied that the money was intended to be Logan's. Steinhart had promised to contribute to the household expenses for years, and when Curria confronted her about the fraudulent credit cards, she promised she would make Curria whole after she sold her San Francisco house. The check from the sale of the house was to reimburse Curria for past rent, health insurance premiums Curria had paid for Logan and Steinhart, Logan's medical bills, joint vacations, and the like. Curria did not recall agreeing to reimburse Logan for the boat, but in her view it was irrelevant because she loved Logan, he was her heir, and everything she owned was or would ultimately be his.
In October 2006 Steinhart sued Curria and Wells Fargo Bank for breach of contract and fraud, individually and as guardian ad litem for Logan. The bank successfully demurred and the case went to trial against Curria alone. The jury returned a defense verdict. Steinhart filed this appeal after the court denied her motions for new trial and judgment notwithstanding the verdict.
DISCUSSION
I. The Court Properly Granted Relief from Default
Steinhart contends the court erred when it set aside Curria's default and urges us to reinstate it and enter judgment against Curria. Her contentions lack merit.
A. Standard of Review
"The granting or denying of a motion to set aside a default judgment is within the sound discretion of the trial court [citation], and generally, since the code section allowing such a motion, Code of Civil Procedure, section 473, is a remedial measure and to be liberally construed [citations], any doubts existing as to the propriety of the trial court's action will be resolved in favor of a hearing on the merits. [Citations.] [¶] Further, as in any other case, the trial court's determination of the facts as found from the affidavits of the parties will be conclusive upon the appellate court [citation], but if the facts as stated in the moving party's affidavit do not constitute valid grounds for the relief sought, the trial court's action in setting aside the default will be reversed [citations]. Hence the question narrows to whether or not the facts stated in the affidavit . . . show reasonable grounds for setting aside the default judgment." (Romer, supra, 171 Cal.App.2d at p. 347.)
B. Background
Steinhart filed this action on October 16, 2006. On September 6, 2007 she filed a request for entry of default and a proof of service that indicated Curria was personally served with the summons and complaint on March 25, 2007. Default was entered on September 6.
Curria moved to set aside the default before judgment was entered. According to declarations supporting her motion, Curria did not learn of the lawsuit until she was contacted by counsel for Wells Fargo in July 2008. She then promptly hired an attorney and, after Steinhart refused to so stipulate, moved to set aside her default. Although Steinhart had lived in the same house with Curria since she filed the complaint in this action two years earlier, she never informed Curria of the lawsuit or told her about any court dates or hearings. Steinhart monitored all of the mail that came to the house and sometimes intercepted and took mail addressed to Curria.
Curria was granted guardianship of Logan in October 2008 after state authorities determined that Steinhart was a threat to herself and her son. Around the same time Steinhart was held for psychiatric evaluation under Welfare and Institutions Code section 5150 due to suicide threats and delusional behavior. Curria and Logan moved out of her Santa Rosa house because Curria believed Steinhart was dangerous. Steinhart continued to live there.
Steinhart's opposition to Curria's motion told a starkly different story. According to her declaration, Curria initially agreed to sign an acknowledgement of receipt of the summons and complaint but later refused. When Steinhart's brother personally served the summons and complaint, Curria opened and read the documents, laughed, and threw them on the floor. Curria later made comments that clearly indicated she was aware of the lawsuit.
Steinhart also attested that Curria's guardianship petition was fraudulent; that she forced Logan to live with her while denying him contact with Steinhart; that Curria and Cresswell lied to authorities in order to have Steinhart held for psychiatric observation and prevent her from fighting the guardianship petition; and that Curria pursued a meritless eviction action and fraudulent restraining order applications against Steinhart in retaliation for her filing this action.
The trial court granted relief from default under the "inherent equitable power the Court has to use its discretion to grant motions such as this when the Court believes that there is an equitable basis for doing so, given the somewhat unusual circumstances surrounding this case."
C. Analysis
Steinhart contends the court lacked jurisdiction to vacate the default because the six-month jurisdictional period provided in Code of Civil Procedure section 473, subdivision (b) had elapsed. The argument is misplaced, because the trial court granted relief by exercising its equitable, not statutory, authority. " „ "Where, as in the present case, a motion to vacate a default judgment is made more than six months after the default was entered, the motion is not directed to the court's statutory power to grant relief for mistake or excusable neglect under . . . section 473, but rather is directed to the court's inherent equity power to grant relief from a default or default judgment procured by extrinsic fraud or mistake." [Citations.]' " (Moghaddam v. Bone (2006) 142 Cal.App.4th 283, 290 (Moghaddam).) Thus, "a trial court may still vacate a default on equitable grounds even if statutory relief is unavailable." (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.)
In relevant part, Code of Civil Procedure section 473, subdivision (b) states: "The court may, upon any terms as may be just, 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. Application for this relief . . . shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order or proceeding was taken." (Italics added.) All further unspecified statutory references are to the Code of Civil Procedure.
Steinhart also says the ruling is erroneous because Curria's notice of motion only specified relief under section 473, subdivision (b), not the court's equitable power. She is mistaken. Although the notice of motion referred only to section 473, subdivision (b), Curria's memorandum of points and authorities explicitly argued for relief from default pursuant to the court's inherent equitable authority. Indeed, far from "bury[ing]" the ground in her papers, as Steinhart suggests, Curria addressed almost half of her 10-page memorandum to her equitable claim. There is no doubt that Steinhart was fairly apprised of it.
Steinhart's case authorities do not support her position that Curria's failure to plead the court's equitable power in her notice of motion deprived the court of jurisdiction to grant relief on that basis. In People v. American Surety Ins. Co. (1999) 75 Cal.App.4th 719, the trial court declined to extend the statutory period for vacating a bail forfeiture because the surety company failed to timely request such an extension in either its notice of motion or its supporting papers. (Id. at pp. 726-727.) Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125 notes the general rule that the court may consider only the grounds stated in the notice of motion (Cal. Rules of Court, rule 3.1110(a)), but clarifies that "[a]n omission in the notice may be overlooked if the supporting papers make clear the grounds for the relief sought. [Citations.] The purpose of these requirements is to cause the moving party to 'sufficiently define the issues for the information and attention of the adverse party and the court.' " That was done here, and was sufficient.
Steinhart next asserts there was insufficient evidence of extrinsic fraud or mistake to justify invocation of the court's equitable power. (See Moghaddam, supra, 142 Cal.App.4th at p. 290 ["The essence of extrinsic fraud is one party's preventing the other from having his day in court"].) Here, too, we disagree. Curria attested that she never heard of the lawsuit until she was contacted by a codefendant in July 2008, and that Steinhart never told her of its existence even though she shared Curria's home the entire two years the complaint was on file. Curria's declaration also stated her belief that Steinhart had a history of intercepting Curria's mail. These attestations, reviewed in light of the deferential standard and preference for resolution on the merits stated in Romer, supra, 171 Cal.App.2d at p. 347, support the trial court's determination that relief from default was warranted. Steinhart's insistence that Curria had actual notice of the lawsuit in time to defend does not help her position, as the trial court's factual determinations are conclusive on appeal. (Ibid.)
Steinhart also relies on Curria's trial testimony about Steinhart's attempt to effect personal service to argue that Curria failed to show "diligence in seeking to set aside the default once it has been discovered." (Moghaddam, supra, 142 Cal.App.4th at pp. 290-291.) But Curria's trial testimony was not before the court when it ruled on the motion for relief from default.
In sum, Steinhart has not shown the court's ruling was legally infirm or an abuse of its discretion.
II. Claims Pursued On Logan's Behalf
Steinhart's complaint alleged each cause of action on behalf of Steinhart as Logan's guardian ad litem as well as in her individual capacity. Steinhart contends that, even if the jury properly rejected her individual claims, Logan is entitled to judgment as a matter of law because Curria failed to defend against his claims; because there was "uncontroverted" evidence that the money in the account belonged to him; and because of an alleged fiduciary relationship between Logan and Curria. These arguments repeat Steinhart's unsuccessful posttrial motion for judgment notwithstanding the verdict, and Steinhart presents no basis for this court to disturb the trial court's ruling.
The trial court explained: "Plaintiff herein argues that defendant never denied the allegations in the complaint alleging the claim of minor Logan Steinhart and presented no evidence in support of a defense of action. However, plaintiff filed a document the court designated as a general denial, which would be a denial of all causes of action stated in the complaint. Moreover, in each of the instructions given to the jury, plaintiffs were listed as 'Sally Steinhart, individually and Sally Steinhart as Guardian ad Litem for minor Logan Steinhart.' Both plaintiffs were also included on the verdict form given to the jury. Therefore, the factual determinations made by the jury, to wit, the defendant did not enter into a contract with plaintiffs, did not make false promises and did not make negligent misrepresentations, defeated the claim of both plaintiff Sally Steinhart and plaintiff Sally Steinhart as Guardian ad Litem for minor Logan Steinhart." The court also found an insufficient factual basis for Steinhart's claim that Curria was Logan's fiduciary.
Steinhart's appellate brief fails to identify any legal error in this ruling or cite anything in the record that compels a different resolution. "We are not required to search the record to ascertain whether it contains support for [an appellant's] contentions. [Citation.] Further, it is established that '. . . an appellate brief "should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration." [Citation.] [¶] . . . This court is not inclined to act as counsel for . . . appellant and furnish a legal argument as to how the trial court's rulings . . . constituted an abuse of discretion.' " (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546 (Mansell).) Moreover, the evidence concerning ownership of the bank account was far from uncontroverted. Curria testified at trial that the money was not Logan's, but rather that it was Steinhart's long-promised reimbursement for years of living expenses. Testimony that Steinhart had Logan sign an IOU for the funds in the account also undermines her position that the money in the joint account belonged to him.
Additional grounds for appeal identified in Steinhart's appellate brief but not supported with legal argument or meaningful citation to the record or authorities are forfeited. (Mansell, supra, 30 Cal.App.4th at p. 546.)
Steinhart filed an unopposed motion to augment the record on August 3, 2011. The motion is denied as to the proposed order setting aside default and default judgment and the accompanying proof of service, which Steinhart has not shown were filed or lodged in the superior court. (See Cal. Rules of Court, rule 8.155(a)(1).) The motion to augment is granted with respect to the other documents specified in Steinhart's motion.
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DISPOSITION
The judgment is affirmed. Curria is entitled to costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
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Siggins, J.
We concur:
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McGuiness, P.J.
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Pollak, J.