Opinion
B225525
09-28-2011
REGENCY OAKHURST OWNERS' ASSOCIATION, Plaintiff, Cross-defendant and Respondent, v. ROGER GASKIN, Defendant, Cross-complainant and Appellant.
Roger Gaskin, in pro. per.; and Howard Gold for Defendant, Cross-complainant and Appellant. Beaumont Gitlin Tashjian, Lisa Arpi Tashjian and Jasmine M. Termain for Plaintiff, Cross-defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. SC100021)
APPEAL from an order of the Superior Court of Los Angeles County, Cesar C. Sarmiento, Judge. Affirmed.
Roger Gaskin, in pro. per.; and Howard Gold for Defendant, Cross-complainant and Appellant.
Beaumont Gitlin Tashjian, Lisa Arpi Tashjian and Jasmine M. Termain for Plaintiff, Cross-defendant and Respondent.
Roger Gaskin appeals from the trial court's denial of his motion for relief from a default entered in favor of Regency Oakhurst Owners' Association (Regency). The court entered a judgment by default after granting terminating sanctions based upon Gaskin's failure to comply with a discovery order. Gaskin contends the court abused its discretion in refusing to grant relief from default, because the underlying judgment was entered on Regency's complaint, when the discovery sought related solely to the cross-complaint. We affirm the court's order.
FACTS
Regency is a nonprofit mutual benefit corporation that manages and operates a condominium property in Beverly Hills, California. Gaskin owned a unit within the complex. All of the homeowners within the complex, including Gaskin, are also members of the homeowners association. Each unit is subject to a declaration of covenants, conditions and restrictions (CC&R's or declaration) running with the land.
Regency's condominium plan defines each unit as having two components: (1) air space (i.e., the actual dwelling space) and (2) airspace balcony (the air space encompassed within the boundaries of the balcony). By definition, the structural components of the balconies are part of the common area, but the owner of each unit is obligated to maintain its attached balcony at the owner's sole cost and expense. (CC&R's, art. 15.01.) Regency's board has the right to enter an owner's unit to make necessary maintenance or repairs and then assess owner for the costs of such repairs. (CC&R's, art. 6.06.)
Article 1.05 of the CC&R's defines "balcony" to mean "a patio which is attached to the dwelling area of a Unit and accessible only through the Unit of which it is a part. . . ."
Gaskin failed to maintain the balcony on his unit. He allowed rubbish and dirt to accumulate to such a point that rain water could not properly drain, which caused water damage to the balcony structure and dry rot. Gaskin failed to notify Regency of the damaged condition and then refused to allow Regency reasonable access to his balcony to make necessary repairs.
PROCEDURAL HISTORY
1. Regency's Complaint
In October 2008, after making multiple requests to Gaskin for reasonable access to the balcony, Regency filed the present action. Regency sought to enforce the provisions of the CC&R's and asked for reasonable attorney fees for such enforcement. Regency further sought a permanent injunction and an order directing that Gaskin (1) allow Regency reasonable and adequate access to his balcony to effectuate repairs, (2) reimburse Regency for the repair costs, and (3) refrain from violating the CC&R's or interfering with Regency's ability to discharge its obligations under the CC&R's. In addition, Regency sought damages for negligence against Gaskin and declaratory relief. After filing the complaint, Regency obtained a court order allowing access to Gaskin's unit for purposes of repair.
2. Gaskin's Answer and Cross-complaint
In December 2008, Gaskin filed an answer to the complaint that generally denied the allegations of the complaint. He simultaneously filed a cross-complaint against Regency for damages making assorted unrelated claims: that Regency's workers damaged his car in a prior incident, that Regency allowed rain to leak into his condominium on other occasions, and that Regency allowed unknown persons onto the roof who damaged a portion of his alarm system.
3. Regency's Answer to Cross-complaint
The law firm of Rapkin Gitlin & Beaumont (RG&B), the same attorneys that filed Regency's complaint, answered the cross-complaint on Regency's behalf. RG&B later filed a notice of association of counsel, in which the firm of Cihigoyenetche, Grossber & Clouse (CG&C) associated in as defense counsel for Regency "on the cross-complaint . . . only."
4. Gaskin's Substitution of Counsel and In Propria Persona Status
Gaskin, who at first was represented by counsel, substituted himself in propria persona on June 23, 2009. The notice of substitution of attorney served upon Regency had Gaskin's residence address in Beverly Hills typed on the form as his address of record. The Beverly Hills address was then crossed out by hand, below which a post office box in Huntington Park was inserted in handwriting as Gaskin's address of record.
Regency served all subsequent documents upon Gaskin at both addresses appearing on the substitution of attorney.
5. Discovery, Motions to Compel and Terminating Order
In June 2009, Regency through CG&C noticed Gaskin's deposition to be taken at RG&B's office in July. Regency served Gaskin with the notice of the deposition by mail at both of the addresses listed on the substitution of attorneys (i.e., Gaskin's residence in Beverly Hills and the post office box address in Huntington Park). After that, a legal assistant from CG&C made two attempts to reach Gaskin by telephone at the telephone number provided on the substitution of attorney. On the first call, she left a message on the answering machine asking Gaskin to return her call to confirm he would appear at his noticed deposition. On the second call, a male answered the phone and claimed Gaskin was out of the state and he was merely the answering service.
Both counsel from CG&C and RG&B were present on the date of deposition to examine Gaskin. Gaskin, however, did not appear to be deposed, nor did he object to his deposition or contact counsel to continue or postpone his deposition. He did not respond to a meet-and-confer letter sent to both of his listed addresses.
Thus, in late July 2009, CG&C filed a motion on Regency's behalf to compel Gaskin to appear for deposition and for an award of sanctions. Gaskin did not file any opposition or appear at the hearing to oppose the motion. In late August, the trial court ordered Gaskin to appear for deposition on a date in early September and awarded Regency monetary sanctions. Regency served notice of the order at Gaskin's two addresses.
When Gaskin failed to appear for deposition as ordered, CG&C moved for terminating sanctions on Regency's behalf in light of an impending October trial. The date of hearing was set for September 17, 2009. The notice of motion specifically stated that "Plaintiff and cross-defendant Regency . . ." intended to move the court for an order granting terminating and monetary sanctions against "Defendant and cross-complainant . . . Gaskin" by striking Gaskin's answer to Regency's complaint and dismissing, with prejudice, Gaskin's cross-complaint. (Italics added.)
RG&B later filed a "Notice of Joinder" to the "Motion of Cross-Defendant, [Regency]," requesting terminating and monetary sanctions against Gaskin.
This joinder was duplicative and mere surplusage since the motion and request already had been filed on Regency's behalf by CG&C.
The motion for terminating sanctions was heard on September 17, 2009, and Gaskin failed to appear or oppose the motion. The trial court struck Gaskin's answer to the complaint and dismissed Gaskin's cross-complaint with prejudice. The court vacated the hearing of all pending motions, including pending motions to compel Gaskin to respond to other outstanding discovery, the final status conference and trial date. On the same date, the court entered Gaskin's default. Regency served Gaskin with a notice of the court's ruling and a notice of entry of dismissal of his cross-complaint.
6. Default Judgment
Following a default prove-up on November 13, 2009, the trial court entered a judgment in Regency's favor. The court expressly found that Gaskin violated the CC&R's by causing damage to his balcony through lack of maintenance and that he caused Regency to file the action by his unreasonable lack of cooperation with Regency. The court declared that Gaskin's failure to maintain the balcony compromised the structural integrity of his balcony and those of his neighbors below, which created a serious safety hazard. Gaskin was ordered to pay Regency all costs of damage.
The judgment also directed Gaskin to maintain his balcony and to refrain from abusive, threatening or otherwise belligerent actions against Regency and its board, its members and its manager as to this issue or from interfering with Regency's ability to discharge its obligations. Regency received an award of $25,554.48 for attorney fees and costs, plus repair costs of $13,253, for a total of $38,807.48.
7. Motion for Relief from Default
Gaskin obtained new counsel on February 18, 2010. But it was not until two months later, on April 16, 2010, that he moved for relief from entry of default. Gaskin alleged he had not received any of the discovery requests nor subsequent motions. He asserted the Huntington Park post office address listed for him in the notice of substitution was "not valid" and Regency had actual notice the papers were to be served on him at a different address.
In support of his motion, Gaskin declared, among other things, that in June 2009 he told his former attorney, Jay R. Saltsman, the Huntington Park post office box was listed as his mailing address on the substitution of attorney form by accident. He stated he instructed Saltsman "everything" should be sent instead to an address on East Olympic Boulevard. Gaskin claimed a friend served a change of address upon RG&B to that effect, and he did not know the change of address was supposed to be filed with the court.
The acquaintance, Saul Detofsky, provided a declaration claiming to have mailed a notice of change of address upon Regency and its attorneys on June 22, 2009, while he was visiting Los Angeles. Detofsky stated he took the originals of the notice back to Florida, and he was still trying to locate them.
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Gaskin claimed not to have received a copy of the substitution of attorney Saltsman actually filed with the court. He knew the case was supposed to go to trial in mid-October 2009, but he had no funds to retain another counsel. He admittedly learned "[s]omewhere around that time" that he had "been defaulted." He did not know a default judgment had been entered until he was served with an order to appear at a judgment debtor examination in December 2009.
Regency opposed the motion for relief from default. Regency contended the relief Gaskin sought was not authorized under Code of Civil Procedure sections 473 and 473.5 because more than six months had passed after entry of default and because Gaskin had actual notice of the underlying action. Regency proffered declarations that showed none of the documents CG&C served upon Gaskin at the post office box in Huntington Park were ever returned as undeliverable. Moreover, CG&C had determined Gaskin had ties to the post office box dating back to 1984, as he was the principal or agent for service of process for several suspended or forfeited corporations that were associated with the post office box. An attorney for Regency also represented that CG&C had no record of receiving the change of address Gaskin claimed he caused to be mailed on June 22, 2009.
RG&B duplicatively joined in the opposition filed by CG&C on Regency's behalf.
8. Order Denying Relief from Default
At the hearing of the motion for relief from default, the trial court noted under Code of Civil Procedure section 473, subdivision (b) it was empowered to relieve 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." Application for such relief "shall be made within a reasonable time, but in no case exceeding six months after entry of the judgment, dismissal, order or proceeding." The court observed that relief under section 473, subdivision (b) may be based either on an attorney affidavit of fault, in which case relief is mandatory, or declarations or other evidence showing mistake, inadvertence, surprise or excusable neglect, in which case relief is discretionary.
The trial court found that Gaskin's motion for relief was timely, because the default judgment was entered on November 16, 2009, and the motion for relief was filed on April 10, 2010, i.e., within six months of the default date. However, the court found the application for relief was not made "within a reasonable time" because Gaskin admitted he had notice of the default judgment in December 2009, yet he did not file his application for relief until April 16, 2010. The court found that a delay of four months was not reasonable under the circumstances.
The trial court additionally found that Gaskin's neglect was inexcusable. Although Gaskin claimed not to have received any documents after June 23, 2009, he admittedly knew that trial was set for October 2009. Gaskin nevertheless took no action to prosecute his cross-complaint or to defend the action. "A man of ordinary prudence," the court found, "would not have consciously disregarded such important matters. With an impending trial date, a reasonably prudent person would have inquired about the status of the litigation either by contacting the court or contacting Plaintiff. [Gaskin] does not state that he took any of these actions. . . ."
The court therefore denied Gaskin's motion for relief from entry of default. Gaskin timely appealed from the order.
DISCUSSION
Gaskin states that the sole issue in his appeal is whether it was an abuse of the court's discretion to uphold entry of a default judgment on Regency's complaint, when the discovery requests leading to the imposition of terminating sanctions concerned issues solely raised by the cross-complaint. Gaskin's factual premise is untrue.
As we have noted elsewhere in this opinion, the record discloses that the trial court imposed terminating sanctions upon Gaskin for failure to comply with its order to appear and be deposed with respect to both pleadings. Regency noticed Gaskin's deposition in both of its capacities as plaintiff and cross-defendant. Counsel from both RG&B, which had primary responsibility for representing Regency as plaintiff, and CG&C, which had primary responsibility for representing Regency as cross-defendant, were inconvenienced by his failure to appear to be deposed. Regency was prejudiced by the inability to examine Gaskin not only in the prosecution of its complaint, but in its defense against the cross-complaint. Although only CG&C presented evidence regarding its fees, RG&B's forbearance in following suit does not establish that the court limited its order for Gaskin to appear solely to be examined with respect to the cross-complaint. In fact, our examination of the record confirms it did not.
Furthermore, Gaskin is placing the cart before the horse. His argument is but a backdoor attempt to attack the propriety of the judgment of default. Whether the court abused its discretion in issuing terminating sanctions by striking Gaskin's answer and dismissing his cross-complaint is an issue that ordinarily should be raised on direct appeal of the judgment. In this case, of course, Gaskin professed not to have known a judgment of default had been entered until December 2009. Assuming for the sake of argument that Gaskin is even credible on this point, the question that presents on this appeal is whether the court abused its discretion in denying Gaskin's motion for relief from default. Only if we found an abuse of discretion on that issue would the propriety of the terminating sanctions be even pertinent or material.
In his opening brief, Gaskin offers no argument that the trial court abused its discretion in denying his motion for relief from default. An appellant on appeal has the burden of demonstrating material error by the trial court. (Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 862 (Sakaguchi).) Such error must affirmatively be shown through reasoned argument, citation to the appellate record, and discussion of legal authority. (Ibid.; Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 685 (Bullock).) This, Gaskin has utterly failed to do.
As a reviewing court, we are not required to make an independent and unassisted study of the record in search of error. (Sakaguchi, supra, 173 Cal.App.4th at p. 862; Bullock, supra, 159 Cal.App.4th at p. 685.) We have nevertheless reviewed the full record and have set forth in detail the operative facts and procedural history that led to the order at issue. We are fully satisfied from that examination that the trial court did not abuse its discretion in denying Gaskin relief from his default.
DISPOSITION
The order is affirmed. Regency is to recover costs on appeal.
FLIER, J. WE CONCUR:
BIGELOW, P. J.
RUBIN, J.