Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RID220275. Matthew C. Perantoni, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Rebeca Duran, in pro. per., for Appellant.
Jim Husen for Respondent.
OPINION
RAMIREZ P. J.
Appellant Rebeca Duran appeals from an order denying her motion, pursuant to Code of Civil Procedure section 473, to set aside the judgment in her marital dissolution proceeding. Duran contends the trial court’s denial of her motion was improperly based on untimely responsive filings by respondent Teodoro Correa, and that the denial of the motion was an abuse of discretion. We affirm.
Undesignated statutory references are to the Code of Civil Procedure.
BACKGROUND
On May 22, 2007, the petition for dissolution of marriage was filed. On October 14, 2008, a mandatory settlement conference was held with the trial court; Duran was present with counsel. An interpreter was present for Correa; both parties were sworn and examined. The trial court bifurcated the issue of status, and entered judgment granting dissolution effective that day, October 14, 2008. It reserved all other issues, set trial for April 28, 2009, and set a trial readiness conference for April 24, 2009. On January 12, 2009, Duran’s counsel filed a motion to be relieved as counsel; however, no one attended the scheduled hearing and the matter was taken off calendar. On January 16, 2009, the trial court advanced the trial readiness conference to April 21, 2009. Duran did not attend the trial readiness conference, but her counsel did.
On April 28, 2009, Duran did not appear for trial, though her counsel did. Her attorney told the trial court that he did not know why Duran was not present, and that he was not ready to proceed. Because there was no good explanation as to why Duran was not present, the court proceeded with the trial. The trial continued over to the following day; Duran did not attend the second day of trial, but her counsel did. The trial court awarded Correa $81,304.18 for reimbursement of separate property contributions toward maintenance and improvements on Duran’s home, ordered the sale and splitting of proceeds for a community property car, and found a truck and Correa’s residence to be Correa’s sole and separate property. Judgment was entered on July 7, 2009; a notice of entry of judgment was filed the same day.
Duran’s counsel withdrew on July 20, 2009, and Duran began representing herself. On October 13, 2009, Duran filed a motion, pursuant to section 473, to set aside the July 7, 2009 judgment. A hearing on the motion was set for November 23, 2009. Duran’s moving papers contend she did not attend the trial because she “did not have notice of the trial dates and was unaware of the hearings.” Duran’s declaration states that she believed her attorney’s office was using her former residence, Correa’s residence, as her mailing address and, thus, she was not getting mail or notices from her attorney. She contended she was prejudiced because Correa would have known she was unaware of the trial dates because he was receiving her mail, and took advantage of her absence from trial to attribute receipts for work on his separate property residence to work on her residence.
On November 16, 2009, Correa filed and served by mail responsive declarations from himself, his son-in-law, and his former attorney. Correa declared that Duran was present both at the April 21, 2009 and the October 14, 2008 hearings. Correa’s former attorney declared that Duran was personally present at the October 14, 2008 settlement conference, including at the time when the trial date was set. Duran was at the court on April 21, 2009, and Duran’s counsel confirmed the trial date. Correa’s son-in-law declared that he attended all of Correa’s hearings; Duran was present at the October 14, 2008 settlement conference when the trial date was set, and Duran did not go into the courtroom on April 21, 2009 but was “at the court on the fourth floor talking with her attorney.” Both Correa and his former counsel declared their belief that Duran was seeking to delay proceedings by avoiding trial. Because the hearing on Duran’s motion was set for November 23, 2009, Correa’s opposition should have been filed and served on November 10, 2009. (See § 1005, subd. (b).) Additionally, the opposition should have been served in an appropriate manner “reasonably calculated to ensure delivery to the other party... not later than the close of the next business day” after filing the response. (§ 1005, subd. (c).)
On November 20, 2009, Duran filed a reply declaration noting the untimely opposition and requesting the opposition declarations be ignored. She also confirmed that she was at the courthouse on April 21, 2009, but that her attorney told her not to go into the courtroom. She then declared that her attorney did not inform her of the trial, that the same attorney had asked her to “sign papers without [her] reading or understanding them. The papers were in English and Spanish is the language in which [she] read[s] and write[s] and understand[s].” The attorney was aware of her “inability to read [or] write in English” because he “had requested an interpreter for [her] at the trial.”
Because Duran elected to proceed without a reporter’s transcript from the hearing, our record of the hearing on Duran’s section 473 motion is limited to the minutes. Duran and Correa’s counsel were present for the hearing; an interpreter was also present for Duran. Duran was sworn and examined, and issues were discussed with the trial court. The trial court then denied the motion.
DISCUSSION
Duran contends the trial court’s denial of her motion was improperly based on untimely responsive filings by Correa, and that the denial of the motion was an abuse of discretion. Correa contends substantial evidence supported the trial court’s decision and that Duran waived any defects in the service of Correa’s opposition papers by filing a reply and contesting the matter on the merits. Because Duran has failed to affirmatively show error, we find no abuse of discretion.
Section 473, subdivision (b), gives the trial court the power to grant relief to a party “from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” When the application for relief is accompanied by an affidavit of fault from the party’s attorney, relief is mandatory. (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 681.) When, as in the instant case, there is no attorney affidavit of fault, the granting of relief lies in the trial court’s sound discretion. (Ibid.) “As the moving party, appellant had the burden of establishing entitlement to relief from the judgment. [Citation.] [Sh]e was required to ‘establish h[er] position by a preponderance of the evidence.’ [Citation.]” (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1423.) “In reviewing the evidence in support of a section 473 motion, we extend all legitimate and reasonable inferences to uphold the judgment. The disposition of such a motion rests largely in the discretion of the trial court, and its decision will not be disturbed on appeal unless there has been a clear abuse of discretion. Although precise definition is difficult, it is generally accepted that the appropriate test of abuse of discretion is whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered. [Citations.] We have said that when two or more inferences can reasonably be deduced from the facts, a reviewing court lacks power to substitute its deductions for those of the trial court. [Citations.]” (In re Marriage of Connolly (1979) 23 Cal.3d 590, 597–598.) “Where ‘ “a party fails to show that a judgment has been taken against him through his mistake, inadvertence, surprise or excusable neglect the court may not grant relief. It has no discretion.” ’ [Citation.]” (Huh v. Wang, supra, 158 Cal.App.4th at p. 1423.)
Unless the absence of a reporter’s transcript is not the fault of the party seeking review, “the absence of a transcript precludes a determination that the trial court abused its discretion. [Citations.]” (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 690 fn. 5; see Eisenberg, et al., Cal. Prac. Guide: Civil Appeals & Writs (The Rutter Group 2009) ¶ 4:3.1 [“Appellant cannot obtain reversal of a trial court order on the basis of abuse of discretion when there is no record explaining the trial court’s reasoning”].) This is because “ ‘ “[a]ll intendments and presumptions are indulged to support [the judgment] on matters as to which the record is silent, and error must be affirmatively shown.” ’ [Citation.]” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140.)
Because the record does not include a transcript, we do not know whether the trial court considered the declarations Correa filed in opposition to Duran’s motion, or any basis it may have had for making its decision. Thus, Duran has failed to affirmatively show any error. Furthermore, the minutes reflect that Duran was present at the October 14, 2008 mandatory settlement conference at which the trial date was set. Accordingly, it may be inferred that the trial court denied Duran’s motion because it was not convinced she did not have notice of the trial, even if her assertions about her mail and communication with counsel were valid. Because this factual determination is supported by the minutes, regardless of the consideration of the untimely declarations in opposition, we do not address the issue of their untimely filing and service.
DISPOSITION
The order is affirmed.
Each party to bear their own costs.
We concur: HOLLENHORST J.KING J.