Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BC230576, Conrad Aragon, Judge. Affirmed.
Donald B. Williams, in pro. per., for Plaintiff and Appellant.
Yolanda Y. Williams, in pro. per., for Plaintiff and Appellant.
Law Offices of Sohnen & Kelly, Harvey Sohnen and Patricia M. Kelly; Washington Mutual Bank and Lawrence W. Stevens.
PERLUSS, P. J.
Donald B. Williams and Yolanda Y. Williams, husband and wife, appeal from the trial court’s February 23, 2006 order denying their motion to set aside and vacate the December 31, 2001 dismissal of their lawsuit against Washington Mutual Bank. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Williamses purchased a home in Altadena, California in July 1984. They refinanced the loan on their home in July 1993 with Home Savings of America. The amount of the loan, secured by a deed of trust, was $70,000. In September 1998 the Office of Thrift Supervision approved the acquisition of Home Savings by Washington Mutual Bank (WaMu).
On May 25, 2000 the Williamses filed a lawsuit against WaMu, apparently as Home Savings’s successor in interest, and other parties in the Los Angeles Superior Court, asserting causes of action for fraud, breach of contract and injury to credit based on the defendants’ purportedly wrongful increase in the Williamses’ monthly loan payment to recover funds advanced to pay delinquent property taxes on the Altadena home. Following a settlement conference before a retired judge and additional negotiations between the parties, the lawsuit was settled in December 2001; the Williamses, represented by counsel, signed a written settlement agreement, as did a vice president of WaMu and WaMu’s in-house counsel. In accordance with the terms of the settlement agreement, the Williamses’ counsel filed a notice of dismissal with prejudice on December 31, 2001; the lawsuit was dismissed on that date.
The record on appeal does not contain a copy of the complaint.
The settlement agreement provides, in part, “Plaintiffs agree to Dismiss with Prejudice the Complaint against Defendants described in paragraph 2.” Paragraph 2 of the agreement identifies the lawsuit filed by the Williamses on May 25, 2000.
On December 21, 2005 the Williamses, appearing in propria persona, filed a two-page notice of motion and motion to set aside and vacate the judgment under Code of Civil Procedure sections 663 and 663a; notwithstanding the caption, in effect the Williamses sought to vacate the December 31, 2001 voluntary dismissal of their action and to have the matter set for a jury trial. On February 2, 2006 the Williamses filed “points and authorities,” as well as a declaration from Donald B. Williams in support of their motion, arguing their former counsel, David St. John, filed the request for dismissal without their consent or knowledge and thus committed “extrinsic fraud” on them and the court. Mr. Williams explained in his declaration that St. John had moved to China in mid-2002 and asserted, as a result, he was unable to obtain his legal file and did not learn a notice of dismissal had been filed with the court until December 15, 2005 when he was advised of that fact by other counsel who was then representing him.
Statutory references are to the Code of Civil Procedure.
WaMu filed an opposition to the motion, which included a declaration from Lawrence W. Stevens, the in-house counsel who had represented WaMu in the original action and the settlement proceedings. In his declaration Stevens explained that he and St. John had numerous discussions regarding the tax aspects of the loan, the accounting for the loan and the merits of the Williamses’ claims. On September 26, 2001 a settlement conference was held in Ventura, California, and subsequently additional negotiations took place leading to a settlement of the matter. The settlement agreement was drafted by St. John and signed by the parties. The agreement specifically provided for a dismissal with prejudice of the lawsuit and a release of all claims as to WaMu, reserving only an issue regarding accounting of the loan to be determined by the parties or through arbitration.
Both Donald Williams and Yolanda Williams appeared at the hearing on the matter; Mr. Stevens appeared for WaMu. In his argument Mr. Williams indicated he intended to base the request to set aside the dismissal, at least in part, on section 473, subdivision (b). After hearing argument the trial court denied the motion: “However denominated, the motion is untimely, having been brought more than four years after dismissal of the action. Moreover, no extrinsic fraud is made out. Rather, Plaintiffs’ argument is that their attorney never obtained their consent to file the dismissal. [¶] This argument is belied by the documentation before the court. The settlement agreement (Motion, Ex. 2) was signed by Plaintiffs on December 24, 2001, and obligates Plaintiffs to file a dismissal as part of the settlement agreement. This agreement specifically authorized Plaintiffs’ counsel to file the complained-of dismissal. [¶] . . . [¶] . . . The agreement further provides that any dispute thereunder shall be referred to binding arbitration. Thus, by voluntary consent of the parties, the court was divested of jurisdiction to resolve such disputes.”
DISCUSSION
1. To the Extent Based on Sections 663 and 473, Subdivision (b), The Motion To Set Aside Was Properly Denied as Untimely
The Williamses’ motion initially purported to seek relief from the order of dismissal entered on December 31, 2001 under sections 663 and 473, subdivision (b). Section 663 authorizes the court to set aside and vacate a judgment or decree “when based upon a decision by the court, or the special verdict of a jury” if (1) there was an incorrect or erroneous legal basis for the decision that was not consistent with or supported by the facts or (2) the judgment or degree was not consistent with or supported by the special verdict. (§ 663, subds. 1 & 2.) By its terms, this section is inapplicable to a voluntary dismissal following the parties’ settlement of the lawsuit and execution of a settlement agreement requiring the dismissal. Moreover, pursuant to section 663a, subdivision 2, a notice of intention to file a motion to set aside the judgment under section 663 must be filed within 15 days of the date of mailing of a notice of entry of judgment or 180 days after the entry of judgment, whichever is earlier. Even if otherwise a proper vehicle to challenge the order of dismissal entered in December 2001, the Williamses’ motion under section 663, filed nearly four years after their case was dismissed, was untimely.
Under section 473, subdivision (b), a trial court may relieve a party from the dismissal of his or her lawsuit or the entry of default caused by the party’s own mistake, inadvertence, surprise or excusable neglect, provided application for relief is made within six months of the entry of the order being challenged. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.) The six-month time limitation is jurisdictional; the court has no power to grant relief under section 473 once the time has lapsed. (Rutan v. Summit Sports, Inc. (1985) 173 Cal.App.3d 965, 970; see Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 735, fn. 3; Weitz v. Yankosky (1966) 63 Cal.2d 849, 855.) Accordingly, the trial court properly rejected this alternative basis for the Williamses’ motion, as well.
Section 473, subdivision (b), provides in part: “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. . . .”
2. The Trial Court Did Not Abuse Its Discretion in Denying the Williamses’ Motion To Set Aside the Dismissal on Equitable Grounds
The Williamses’ principal argument on appeal is the trial court should have used its inherent equitable power to set aside the December 31, 2001 order of dismissal on grounds of extrinsic fraud and mistake. When a default judgment or dismissal has been obtained, equitable relief should be granted only in “exceptional circumstances.” (Rappleyea v. Campbell, supra,8 Cal.4that pp. 981-982 [after six-month period prescribed by section 473 for vacating default, “strong public policy in favor of the finality of judgments” is implicated and outweighed only by exceptional circumstances].)
We review a challenge to a trial court’s order denying a motion to vacate a default or an order of dismissal on equitable grounds for an abuse of discretion. (Rappleyea v. Campbell, supra, 8 Cal.4th at p. 981.) “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.” (In re Marriage of Connolly (1979) 23 Cal.3d 590, 597-598; see Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479 [“The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.”].)
Although, as the Williamses contend, exceptional circumstances warranting equitable relief from default or dismissal may include extrinsic fraud or extrinsic mistake (Rappleyea v. Campbell, supra,8 Cal.4that p. 982), the trial court in this case was well within its discretion in finding no basis for granting the equitable relief requested. The Supreme Court has construed the terms “extrinsic fraud” and “extrinsic mistake” broadly in this context to apply “when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits.” (Id. at p. 981.) More specifically, “‘[e]xtrinsic fraud occurs when a party is deprived of the opportunity to present his claim or defense to the court; where he was kept ignorant or, other than from his own negligence, fraudulently prevented from fully participating in the proceeding.’” (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1300.) “‘The essence of extrinsic fraud is one party’s preventing the other from having his day in court.’ [Citations.] Extrinsic fraud only arises when one party has in some way fraudulently been prevented from presenting his or her claim or defense.” (Ibid.; see Kulchar v. Kulchar (1969) 1 Cal.3d 467, 472, citing Aldabe v. Aldabe (1962) 209 Cal.App.2d 453, 475; Moghaddam v. Bone (2006) 142 Cal.App.4th 283, 290; In re Marriage of Stevenot (1984)154 Cal.App.3d 1051, 1068-1069.)
In Rappleyea v. Campbell, supra, 8 Cal.4th 975, for example, the defendants were misled into missing their filing date by their reliance on the court clerk, who misinformed them of the filing fees due, and counsel for the opposing party, who misinformed them of their rights. (Id. at pp. 978-979.) The Williamses, in contrast, point to nothing in the record to demonstrate that extrinsic factors attributable to WaMu or to the court itself prevented them from pursuing their lawsuit, rather than resolving it by way of a settlement. Rather, they simply assert they did not authorize their counsel, St. John, to file a request for dismissal and believed a possible resolution of the dispute with WaMu was still being negotiated in late December 2001. As the trial court found, however, this argument is completely belied by the fact the Williamses executed a formal settlement agreement on December 24, 2001 that calls for the dismissal of their action with prejudice, a release of all claims against WaMu save only for one issue relating to an accounting for their loan and an express agreement to submit that issue to arbitration if it could not be resolved by the parties themselves.
Although not denying they signed the settlement agreement or that they were aware the agreement required dismissal of their lawsuit with prejudice, the Williamses argue St. John’s “fraud” is proved by the fact he filed the request for dismissal with the court on December 21, 2001, three days before they signed the settlement agreement on December 24, 2001. The Williamses misread the documents submitted with the motion and opposition and thus misrepresent the sequence of events. It appears from notations on the copies of the settlement agreement filed with the court in connection with the Williamses’ motion to set aside that the document was completed and faxed out for review and approval on December 21, 2001. Apparently in connection with his preparation of the settlement documentation, St. John also prepared and signed on December 21, 2001 the request for dismissal contemplated by the agreement. But the request for dismissal was not filed with the court until December 31, 2001 -- one week after both Williamses signed the agreement. There is not a scintilla of evidence in these actions suggesting fraud (extrinsic or otherwise) or mistake -- only perhaps buyers’ remorse by the Williamses.
Indeed, the settlement agreement contains a provision confirming the terms were explained to the Williamses and they understood them.
To set aside a dismissal based on extrinsic fraud or extrinsic mistake, the moving party must also demonstrate the underlying action has merit and that he or she proceeded diligently to set aside the order of dismissal. (Moghaddam v. Bone, supra, 142 Cal.App.4th at pp. 290-291.) The sparse documentation presented to the trial court in connection with the motion to set aside the dismissal, which did not even include the underlying complaint filed by the Williamses, is wholly inadequate to establish they have a potentially meritorious case. That is an additional basis for affirming the trial court’s order. (See generally Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296 [to overcome presumption on appeal that an appealed judgment or order is correct, appellant must provide adequate record demonstrating error]; Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1 [burden on appellant to provide accurate record on appeal to demonstrate error; failure to do so “precludes adequate review and results in affirmance of the trial court’s determination”].)
The trial court correctly concluded the Williamses failed to meet their burden of showing the dismissal was obtained through extrinsic fraud or mistake. There was no abuse of discretion in denying their motion.
DISPOSITION
The order is affirmed. Each party is to bear their or its own costs.
We concur: WOODS, J., ZELON, J.