Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment and an order of the Superior Court of Los Angeles County No. VC048805, William J. Birney, Jr., Judge.
Law Offices of Jody D. Angel, Jody D. Angel; DiJulio Law Group, R. David DiJulio, Michael M. Bergfeld and Tiffany Krog for Defendant and Appellant.
Law Offices of Michael L. Shaima and Michael L. Shaima for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendant Foremost Investment Properties, LLC (Foremost) appeals from a judgment in favor of plaintiff Cal Bellini (Bellini) and from an order denying Foremost’s motion to set aside the judgment. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Bellini filed this action on May 30, 2007 against Jerome R. Thornsley (Thornsley), Henry A. Thomas (Thomas), William Smith (Smith) and Peppertree Financial, Inc. (Peppertree). Bellini alleged causes of action for breach of contract, quiet title, declaratory relief, accounting, tort in essence based on violation of Civil Code section 2924, usury, and tort of another.
According to the allegations of the complaint, Bellini owned real property at 6727 Milton Avenue in the City of Whittier. Smith arranged for a loan on the property in the amount of $37,000. On December 27, 2002, Bellini executed a note in that amount payable to the lenders, Thornsley and Thomas, and secured by a deed of trust in their favor. In addition, Smith “charged [Bellini] an [sic] $1,100.00 annual commission for the life of the loan.”
The term of the note was one year, but that was extended by verbal agreement. Monthly payments were $400. Bellini was current on these payments. Nevertheless, on January 20, 2007, Peppertree recorded a notice of default and election to sell under deed of trust, claiming that Bellini was in arrears in the amount of $2,443.87 as of January 31. Bellini kept making payments on the note until March 1, 2007. He stopped after he learned of the foreclosure proceedings.
Bellini was being charged a commission of $1,100 per year, and he was required to pay this amount in order to avoid foreclosure proceedings. Bellini alleged that this breached his contract.
Bellini further alleged that he was not served with a notice of default, and when he learned of the foreclosure proceedings and contacted Peppertree, he was not provided with the amount required to cure the default. There were substantial defects in the default and foreclosure proceedings. As a result, Bellini was entitled to have the property returned to him, as well as to recover monetary damages.
No proofs of service were filed with the court, and an order to show cause (OSC) re failure to prosecute was issued. Bellini’s attorney, Michael L. Shaima, failed to appear at the August 23, 2007 hearing on the OSC, and the court imposed sanctions against Mr. Shaima. The sanctions award was stayed pending filing the proofs of service.
Mr. Shaima filed a declaration stating that the case might settle, so the court continued the stay of the imposition of sanctions. At the November 1, 2007 hearing on the matter, Mr. Shaima failed to appear. The case had not settled and no proofs of service had been filed, so the court lifted the stay and ordered the sanctions paid. It set a hearing for an OSC cause re dismissal. Mr. Shaima failed to appear at the hearing, although he did pay the sanctions. On December 7, 2007, the court dismissed the case for failure to prosecute.
Bellini moved to set aside the dismissal, and on February 20, 2008, the court granted the motion. Mr. Shaima then informed the court he would be amending the complaint to name the new owner of the property as a doe defendant. He then filed an amendment naming Foremost as a doe defendant.
Thornsley, Thomas, Smith and Peppertree filed a motion to interplead surplus funds from the foreclosure sale. The court granted this motion.
On May 30, 2008, attorney Jody D. Angel filed an answer on behalf of Foremost, denying the allegations of the complaint. The answer also asserted a number of affirmative defenses.
Mr. Shaima failed to appear at the hearing on the OSC re filing a doe amendment and trial setting conference. The court set an OSC re dismissal for failure to appear. At the July 25, 2008 hearing on the OSC, Mr. Shaima claimed his failure to appear was due to a calendaring snafu. The court found excusable neglect and discharged the OSC. It then set a mandatory settlement conference for February 19, 2009, a final status conference for March 5, and trial for March 19.
Mr. Angel, on behalf of Foremost, filed a motion to expunge the lis pendens on the property. Bellini’s opposition to the motion was untimely, but the court agreed to consider it. The court denied Foremost’s motion on the ground that if Bellini succeeded on his causes of action, the sale to Foremost would be void and expungement would be mandatory.
On February 19, 2009, attorney Edward C. Tu appeared on behalf of Foremost. Thornsley, Thomas and Smith did not appear, and the court issued an OSC re striking their answers. It ordered the mandatory settlement conference off calendar.
Mr. Angel filed an association of attorney as to Mr. Tu on May 15, 2009.
At the March 5 final status conference, the court discharged the OSC after learning that counsel for Thornsley, Thomas and Smith had died, and it was not clear that those defendants had notice of the mandatory settlement conference date.
Mr. Angel filed on behalf of Foremost an application for continuance of the trial date. At the April 17 hearing, at which Mr. Tu appeared on behalf of Foremost, the court granted the application and continued the trial date to July 27.
Foremost made an ex parte application to reopen discovery and extend it in accordance with the new trial date. At a hearing attended by Mr. Tu, the court granted the application. Both Mr. Tu’s and Mr. Angel’s names appeared on the order granting the application, which listed the new trial date as July 27.
On the July 27 trial date, Judge Brian F. Gasdia ordered: “Defendant Foremost fails to appear for trial. The court orders that trial proceed as an uncontested matter as to this defendant. [¶] Matter is transferred forthwith to Department SE-P for court trial to be heard before Judge William J. Birney.”
In Judge Birney’s courtroom, Mr. Shaima informed the court that Bellini was dismissing Peppertree from the action without prejudice. He then informed the court that the trial had been continued to that date at Foremost’s request. Foremost was informed of the new trial date and had given notice to all parties. That morning at about 10:00, Mr. Shaima had called Mr. Tu’s office and “let the office know” that they were in trial. He had not heard from Mr. Tu’s office and did not believe that the court had heard anything either.
Mr. Shaima continued that in the absence of counsel for Foremost, Bellini had settled with Thornsley and Smith. He explained, “First of all, Mr. Bellini is giving up his right to attorney fees under the promissory note against Mr. Thornsley. This attorney fee amount is very substantial. [¶] The court represented that this court’s position that Foremost as the party who bought the property of the trustee sale stands in the shoes of Mr. Thornsley with respect to obligations under the promissory note, including the obligation to pay Mr. Bellini’s attorney fees.” The court agreed that was correct.
Mr. Shaima added that “[f]rom the position of Mr. Smith and Mr. Thornsley, there’s a preliminary discussion with the court to the effect that Foremost is a defendant and if they wish to proceed against Mr. Smith or Mr. Thornsley in this action or any matters arising out of these circumstances encompassing this action it should have been by way of a cross-complaint in this matter, compulsory cross-complaint.” Again, the court agreed.
Mr. Shaima then went “for the meat of the settlement which is that each of these parties here will agree to mutually walk away, which is that each party will be responsible for their own attorney fees, their costs, and damages, that they will waive their right to any unknown damages by waiving their right under Civil Code section 1542.” Dismissal of the action against these defendants would be without prejudice, in case it turned out that the accountings given to Bellini were incorrect. The court accepted the settlement.
That afternoon, Mr. Shaima recapped the proceedings, i.e., that Bellini had settled with Thornsley and Smith that morning. “We are proceeding as an uncontested matter against Foremost who is named as Doe 1.... There’s been no cross-complaint filed by Foremost.... [¶]... [¶]
“During April, Mr. Joseph [sic] Angel, the attorney of record for Foremost, filed a motion to continue the trial and that motion was granted. The trial date was continued; trial date is today. Mr. Angel, Foremost’s attorney, was required to give notice to all parties concerning the continued trial date we had today. And that’s where we are. Mr. Angel gave notice.
“At this point in time, Foremost is represented by two separate attorneys—Mr. Angel’s office and Edward Tu of Pasadena. Mr. Tu has appeared in the matter on behalf of Foremost on numerous occasions. That brings us to this point.
“This morning I telephoned Mr. Tu’s office and let the individual who answered the phone at his office—I made sure it was his office and not an answering service—let the gentleman there know that today was the date for trial, that we were at trial. I told the gentleman at Mr. Tu’s office that it was an emergency. And I requested that Mr. Tu call my cell phone immediately. I left my cell phone number. I checked my cell phone number and have received no calls from Mr. Tu. That’s where we are.”
The matter then proceeded to trial. The court’s minute order states: “Matter proceeds as an uncontested trial as to defendant Foremost Investment Properties.” Following testimony by Bellini, the court issued judgment in favor of Bellini in the amount of $110,200 plus costs and attorney fees upon motion. It quieted title to the Milton Avenue property in favor of Bellini.
On August 7, 2009, Mr. Angel on behalf of Foremost filed a request for a statement of decision. On August 21, the trial court denied the request as untimely and entered judgment in favor of Bellini.
Mr. Angel then associated the DiJulio Law Group as counsel for Foremost. DiJulio filed a motion to set aside the judgment based on mistake, inadvertence, surprise or excusable neglect on the part of Mr. Angel. Mr. Angel explained in his declaration: “My mistake [in failing to appear for trial] was due to miscalendaring in that I erroneously entered the trial date in the month of August in my day planner rather than the month of July.”
At the hearing on the motion, the trial court observed that according to Mr. Shaima, when he wanted to set Bellini’s deposition, “[i]t’s at this point that Mr. Shaima received no response either from Angel’s office or Tu’s office. [¶] I don’t find that strange because our clerk made calls and couldn’t find Angel. He has some office in Arizona as well. She had even called the State Bar because she couldn’t find him.”
The court further explained, “I want to put all that on the record because it just seems unusual to me and reasons whether there be a lack of diligence or some other reason I don’t understand, but the conduct of Tu and Angel here are undeserving of what they’re pleading for at this point based on that background.”
The court noted that mandatory relief might be available under Code of Civil Procedure section 473 if Mr. Angel’s neglect “caused a default which would become a judgment. That’s not the case here as I see it. This is a judgment after trial. Therefore, I find that 473 is inapplicable. There’s no mistake in this case of fact or law which caused the judgment to be taken after trial. There’s no surprise either that can justify setting aside this judgment.” At that point, the court gave Mr. DiJulio an opportunity to respond on Foremost’s behalf.
Mr. DiJulio pointed out that excusable neglect was a consideration under the discretionary provisions of Code of Civil Procedure section 473, rather than the automatic relief provision. In addition, the merits of the action favored Foremost, which did nothing wrong but had both lost the property and had a judgment taken against it.
The trial court responded “that the failure to show up for trial is not the cause of the judgment that was rendered in this case. The judgment was based on the evidence. Accordingly, this court denies the motion of the defendant to set aside the judgment pursuant to CCP 473(b).”
On October 15, 2009, DiJulio filed Foremost’s notice of appeal from the August 21, 2009 judgment, which he characterized as both a judgment after court trial and default judgment, and from an unidentified postjudgment order.
DiJulio subsequently identified this order as the order denying the motion to set aside the judgment.
On December 7, 2009, DiJulio on behalf of Foremost filed a new action against Peppertree, Bellini, Thornsley, Thomas and Smith for constructive trust, unjust enrichment, fraudulent concealment, negligence, indemnity and contribution. (Foremost Investment Properties v. Peppertree Financial, Inc. (Super. Ct. L.A. County, No. VC055111).)
In the instant case, on December 17, 2009, DiJulio filed a notice of intention to move for new trial on behalf of Foremost. The grounds for the motion were irregularity in the proceedings by the court and by the adverse party, improper court orders, abuse of discretion, excessive damages, insufficient evidence to support the judgment and decision contrary to law. On January 26, 2010, Foremost filed a “notice of plaintiff’s non-opposition to defendant’s notice of intention to move for new trial.” It claimed that Bellini did not oppose the new trial and admitted the allegations of misconduct on the part of Bellini and his counsel.
Bellini filed opposition to the new trial motion on January 27, 2010. He then filed a request that the court consider his opposition, claiming that Foremost filed its notice of intention to move for new trial during the time that Mr. Shaima had informed the court he would be unavailable.
The court held a hearing on the new trial motion on February 9, 2010. After extensive argument on both the motion and whether the court could consider Bellini’s opposition, the court took the matter under submission. On February 11, the court denied the new trial motion without further explanation.
On June 18, 2010, Foremost dismissed the action it had filed against Peppertree, Bellini, Thornsley, Thomas and Smith without prejudice.
DISCUSSION
A. Jurisdiction
Foremost contends “[t]he trial court’s handling of the ‘trial’ was in excess of its jurisdiction.” In essence, Foremost claims that the trial court did not examine the allegations of the complaint to determine which causes of action applied to Foremost, and it did not require Bellini to prove all elements of each cause of action against Foremost. By failing to examine the allegations of the complaint and trying the case on causes of action in which Foremost was not named, the trial court exceeded its jurisdiction. By failing to require Bellini to prove all elements of each cause of action, the trial court in actuality conducted a default prove-up, not a trial on the merits.
Foremost’s claims are, for the most part, not supported by citations to the record. There is nothing in the minute order reflecting the trial court’s conduct of the trial or the judgment itself which supports the claims.
Foremost’s request for a statement of decision, which could have shed light on the trial court’s reasoning, was denied as untimely.
It is well established that in addressing an appeal, we begin with the presumption that the judgment of the trial court is correct. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133; Fleishman v. Superior Court (2002) 102 Cal.App.4th 350, 357.) The “party challenging a judgment has the burden of showing reversible error by an adequate record.” (Ballard v. Uribe (1986) 41 Cal.3d 564, 574; Robbins v. Los Angeles Unified School Dist. (1992) 3 Cal.App.4th 313, 318.) Meeting this burden requires citations to the record to direct the court to the pertinent evidence or other matters in the record which demonstrate reversible error. (Cal. Rules of Court, rule 8.204(a)(1); Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115; Culbertson v. R. D. Werner Co., Inc. (1987) 190 Cal.App.3d 704, 710.) It also requires citation to relevant authority and argument. (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546; People v. Dougherty (1982) 138 Cal.App.3d 278, 282.)
Foremost relies on the principle that a court acts in excess of its jurisdiction “‘“where, though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no ‘jurisdiction’ (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites.”’ [Citation.]” (Thompson Pacific Construction, Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 525, 537.) Foremost has failed to demonstrate, however, that the trial court did, in fact, exceed its jurisdiction by rendering judgment against Foremost on causes of action to which Foremost was a party.
B. Denial of Motion to Set Aside the Judgment
Foremost acknowledges that the mandatory relief provision of Code of Civil Procedure section 473, subdivision (b), (section 473(b)) by its terms, does not apply. It provides that “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 entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”
Here there was no default, default judgment or dismissal of the action, despite Foremost’s attempts to characterize the judgment as a default judgment. In support of its claim the mandatory relief provision applies, Foremost relies on In re Marriage of Hock & Gordon-Hock (2000) 80 Cal.App.4th 1438, decided by Division Five of this District, in which the court held that the mandatory relief provision applies even if there has been no technical default and default judgment or dismissal, if there has been “the procedural equivalent of a default judgment, ” i.e., if the party has not “had an opportunity to have her or his day in court and has [not] contested the judgment or order.” (Id. at p. 1444.) Under Hock, the mandatory relief provisions would apply here, since defendant “did not appear at the trial, nor was [it] represented by [its] attorney.” (Ibid.)
We respectfully disagree with Hock. We agree with the Third District’s conclusion in Vandermoon v. Sanwong (2006) 142 Cal.App.4th 315, review denied November 15, 2006, and English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, review denied February 13, 2002, “that the mandatory provision of section 473(b) does not apply to a judgment entered after an uncontested trial in a defendant’s absence because such a judgment is neither a ‘default, ’ a ‘default judgment’ nor a ‘dismissal’ within the meaning of section 473(b).” (Vandermoon, supra, at p. 317.)
“‘The axioms of statutory construction require us first to look at the words used by the Legislature. If the language is unambiguous, our task is finished. [Citations.] If the language is ambiguous, we then examine the context of the statute, striving to harmonize the provision internally and with related statutes, and we may also consult extrinsic indicia of intent as contained in the legislative history of the statute.’ [Citation.]” (English v. IKON Business Solutions, Inc., supra, 94 Cal.App.4th at p. 143.)
“As expressly worded, [the mandatory provision of] section 473(b) applies only to relief sought in response to defaults, default judgments or dismissals.” (Vandermoon v. Sanwong, supra, 142 Cal.App.4th at p. 320.) We therefore “reject[] anything outside the narrow construction of the language as contrary to what the Legislature intended.” (Id. at p. 321.) We disagree with Hock and similar decisions “‘which, in understandable, yet ultimately misguided quests to salvage cases lost by inept attorneys, have applied the mandatory provision far beyond the limited confines the Legislature intended.’ (English v. IKON [Business Solutions, Inc.], supra, [94 Cal.App.4th] at p. 148.)” (Vandermoon, supra, at p. 321.)
Foremost further contends that, even under the discretionary provisions of section 473(b), the trial court abused its discretion in denying the motion to set aside the judgment. Section 473(b) permits the trial court to grant relief from a judgment, order or other proceeding taken against a party by “mistake, inadvertence, surprise, or excusable neglect.” The provisions of this section are liberally construed in favor of the determination of actions on their merits. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 256.) We review a trial court’s action under section 473(b), for abuse of discretion. (Zamora, supra, at p. 257; Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1354.) Discretion is abused when a decision is arbitrary or capricious, or it exceeds the bounds of all reason under the circumstances. (People v. Franco (1994) 24 Cal.App.4th 1528, 1543.) An abuse of discretion must be affirmatively established. (In re Marriage of Gonzalez (1976) 57 Cal.App.3d 736, 749.)
In support of its argument that the trial court abused its discretion in denying the section 473(b) motion, Foremost cites a number of factors: the trial court’s “mind-set that Foremost’s trial counsel, Jody Angel, was acting in a calculated fashion in not appearing on the day of trial”; that Mr. Shaima did not call Mr. Angel when he failed to appear for trial but rather “only called a local contract attorney hired to make appearances, not to conduct the trial”; and the numerous times Mr. Shaima failed to appear at hearings and was granted relief.
What appears from the record is that trial was continued to July 27, 2009 at Mr. Angel’s request. Mr. Tu was present at the hearing at which the continuance was granted. Both attorneys thus were aware of the trial date.
There was a subsequent ex parte motion to reopen discovery. Both Mr. Angel’s and Mr. Tu’s names appear on the order granting the motion, which stated that the new trial date was July 27.
Mr. Angel’s address was in Arizona, while Mr. Tu’s was in the Los Angeles area. Both Mr. Shaima and the trial court had trouble contacting Mr. Angel. On the date set for trial, when no one appeared on behalf of Foremost, Mr. Shaima logically attempted to contact the local attorney rather than the out of state attorney who was difficult to contact.
Mr. Angel had associated Mr. Tu as counsel on the case. It was not until the hearing on the section 473(b) motion that Mr. DiJulio informed the court that Mr. Tu was “a contract attorney who was making appearances.”
The trial court did not know why neither attorney showed up for trial, “whether there be a lack of diligence or some other reason I don’t understand, but the conduct of Tu and Angel here are undeserving of what they’re pleading for at this point based on that background.” In addition, “[t]here’s no mistake in this case of fact or law which caused the judgment to be taken after trial. There’s no surprise either that can justify setting aside this judgment.”
We find no abuse of discretion in the trial court’s ruling. Neglect is excusable if “‘“a reasonably prudent person under the same or similar circumstances” might have made the same error. [Citations.]’” (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1128.) An attorney’s failure to appear for trial when aware of the trial date simply is not the act of a reasonably prudent person. (Id. at p. 1129.) Accordingly, the trial court did not err in denying Foremost relief under section 473(b).
C. Denial of New Trial Motion
Foremost contends it should have been granted a new trial on the ground of excessive damages. A trial court’s order denying a new trial is reviewed for abuse of discretion. (8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial Court, § 138, p. 729.) The trial court’s exercise of discretion is given great deference on appeal. (Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1160.) However, in reviewing an order denying a new trial, we review the entire record, including the evidence, and make an independent determination as to whether any error was prejudicial. (Sherman, supra, at pp. 1160-1161; 8 Witkin, supra, § 138, pp. 729-730.)
In support of its contention, Foremost first cites the affirmative defenses in its verified answer. Allegations in a pleading are not evidence. Foremost had the burden of proving the existence of facts supporting its affirmative defenses (Evid. Code, § 500), and it failed to meet that burden.
Foremost also claims a misrepresentation was made in settlement proceedings resulting in Thornsley’s dismissal from the action, and evidence Foremost submitted in support of its new trial motion that it had spent over $30,000 to repair the property. Foremost also relies on evidence it submitted in support of its motion that the property was not zoned for the use on which Bellini based his claim of lost lease revenue.
The claim of misrepresentation is based on a statement in Mr. DiJulio’s declaration in support of the new trial motion that Peppertree interpleaded funds it received from Foremost that exceeded Bellini’s debt. We fail to see how this statement establishes misrepresentation of excessive damages.
As to the evidence Foremost cites, it was not before the court at trial. Thus, Foremost is in actuality claiming that a new trial should have been granted on the ground of newly discovered evidence. In order to obtain a new trial on this ground, a party must show not only that the evidence would produce a different result, but also that the party “could not, with reasonable diligence, have discovered and produced [the evidence] at trial.” (Sherman v. Kinetic Concepts, Inc., supra, 67 Cal.App.4th at p. 1161.) In light of the trial court’s finding that Foremost’s failure to appear at trial was due to inexcusable neglect, Foremost cannot make this showing.
As previously stated, Foremost has the burden of showing reversible error (Ballard v. Uribe, supra, 41 Cal.3d at p. 574; Robbins v. Los Angeles Unified School Dist., supra, 3 Cal.App.4th at p. 318) by directing us to those portions of the record which support their claims (Guthrey v. State of California, supra, 63 Cal.App.4th at p. 1115; Culbertson v. R. D. Werner Co., Inc., supra, 190 Cal.App.3d at p. 710), as well as providing us with citations to relevant authority and argument in support of those claims (Mansell v. Board of Administration, supra, 30 Cal.App.4th at pp. 545-546). They have failed to do so with respect to their claim the trial court abused its discretion in denying their new trial motion.
DISPOSITION
The judgment and order are affirmed. Plaintiff is to recover his costs on appeal.
We concur: WOODS, Acting P. J.ZELON, J.