Opinion
A164769
02-02-2023
In re the Marriage of B.N. and N.N. v. N.N., Appellant. B.N., Respondent,
NOT TO BE PUBLISHED
(San Francisco County Super. Ct. No. FDI-19-792305)
SIMONS, J.
The underlying action is a marriage dissolution proceeding involving appellant N.N. (appellant) and respondent B.N. (respondent). Appellant presents various claims of error relating to entry of a default judgment. We affirm.
We identify the parties by their initials pursuant to rule 8.90 of the California Rules of Court.
BACKGROUND
In September 2019, respondent filed a petition for dissolution of his marriage to appellant (Petition). In December 2019, respondent filed a proof of service, signed by a process server, stating that the summons and the Petition were served on appellant at work on December 16.
Appellant did not file a response to the Petition and respondent requested entry of default in late 2020. The trial court entered the default on December 16 and mailed a copy to appellant. Nearly two weeks later, on December 29, appellant moved to quash service of the summons and the Petition, on the ground that they were not actually served on her.
The request for entry of default is signed October 27, 2020, but it bears a filing date of December 16. It is unclear whether December 16 is only the date of entry of default, or also the date the request was filed.
On March 12, 2021, the trial court entered a default judgment based on respondent's declaration filed under Family Code section 2336. That same day, the court mailed notice of entry of judgment to the parties.
On March 16, 2021, respondent filed an opposition to appellant's motion to quash service, including a declaration from the process server. Among other things, respondent argued the motion to quash was untimely.
On March 19, 2021, appellant filed a motion to set aside the March 12 default judgment. At a hearing on April 1, the trial court set an evidentiary hearing, and, on May 27, the court heard testimony from respondent's process server. The court continued the matter for a further evidentiary hearing on September 28. In a brief submitted in advance of the hearing, respondent argued appellant's motion to quash was improper because it was filed after the trial court had entered her default.
In September 2021, appellant sent a disability accommodation request to the trial court's ADA Coordinator, which was marked as received on September 23. The request was for a four-to-six-month continuance of the September 28 hearing. On September 25, the presiding judge denied the request, with the notations "Does not meet the requirements of Cal. Rules of Court, rule 1.100" (underlining omitted) and "Denied without prejudice. Motion required." Appellant did not file a petition for a writ of mandate seeking review of the denial of the requested accommodation, as provided in rule 1.100(h); appellant's notice of appeal does not reference the September 25 ruling; and appellant does not argue on appeal that the September 25 ruling was in error.
All rules references are to the California Rules of Court. It appears the presiding judge may have intended to communicate that, because the rule 1.100(h) request was untimely, appellant was required to file a motion for a continuance.
The record on appeal contains a cover letter from appellant's counsel dated September 27, 2021, transmitting a request for disability accommodation and supporting materials to the trial court's ADA Coordinator. None of the documents bear a stamp indicating when they were received by the court. The proof of service states that the request and supporting materials were hand delivered on September 27. The request was again for a four-to-six-month continuance of the September 28 hearing.
At the start of the hearing on September 28, appellant's counsel referenced the request she had filed, but the trial court stated that it did not have any request pending before it. Appellant's counsel said she had placed the request in the court's drop box, but the court said it had not received anything. The court also pointed out that anything placed in the drop box would be considered filed the next day and that, "In any case, the motion would be untimely." Appellant's counsel stated that appellant's position was that the "motion needs to be heard and the merits" resolved before continuing with the evidentiary hearing.
The trial court indicated its intent to proceed with the hearing and appellant's counsel stated that appellant was "unavailable to be present this afternoon" "[f]or the reasons stated" in the rule 1.100(h) request. The trial court proceeded to deny the motion to quash summons and the motion to set aside the March 12, 2021 default judgment. The court stated that the testimony of respondent's process server was "extremely credible." Finally, the court granted sanctions in the amount of $450 against appellant's counsel because she "delay[ed]" the May 27 court proceedings "by about an hour and a half" by "refus[ing]" to return to the courtroom.
On October 13, 2021, appellant filed a motion for a new trial regarding her motion to quash and her motion to set aside the default judgment. The trial court denied the motion on November 23, although the order was not filed until January 7, 2022. The court also granted respondent sanctions against appellant under Family Code section 271.
Appellant appealed from the trial court's September 28, 2021 and January 7, 2022 orders.
DISCUSSION
I. Entry of Default Judgment
Appellant argues the trial court erred in entering the March 2021 default judgment because her motion to quash service of the summons and Petition was pending. She points out that Code of Civil Procedure section 418.10, subdivision (b) provides that "[t]he service and filing of the notice [of motion to quash] shall extend the defendant's time to plead until 15 days after service upon him or her of a written notice of entry of an order denying his or her motion." However, appellant's motion to quash was untimely, because it had to be filed "on or before the last day of his or her time to plead or within any further time that the court may for good cause allow." (§ 418.10, subd. (a).)
All undesignated section references are to the Code of Civil Procedure.
For the first time in her reply brief, appellant cites In re Marriage of Obrecht (2016) 245 Cal.App.4th 1 (Obrecht), to support her argument entry of the default judgment was improper. That case is distinguishable. In Obrecht, the appellant filed a motion to quash in the trial court (on the ground of lack of jurisdiction in California) after the time to plead had expired. (Id. at pp. 6, 16.) The trial court denied the motion and the appellant filed a petition for writ of mandate seeking to set aside denial of his motion to quash. (Id. at p. 6.) At a subsequent hearing, while the writ was pending, the trial court directed the other party to file a request to enter default. (Id. at pp. 6-7.) The court entered default and then a default judgment. (Id. at p. 7.)
On appeal, the Obrecht court held that the entry of default violated section 418.10. (Obrecht, supra, 245 Cal.App.4th 1.) The court of appeal reasoned that the trial court had exercised its discretion to allow the appellant to file an untimely motion to quash, as permitted under section 418.10, subdivision (a). (Obrecht, at p. 16.) The court of appeal pointed out that the other party had not argued the motion was untimely, and that the trial court decided the motion on the merits. (Id. at pp. 16-17.) The court of appeal reasoned, "Had an objection been made to the timeliness of the motion, [the appellant] might have been able to meet it by demonstrating 'good cause' to excuse him from the time limits under section 418.10(a). In the absence of such an objection-or notice from the court that it intended to rely on such a ground-he had no opportunity to meet it." (Obrecht, at p. 17.)
In contrast, in the present case, respondent objected to the timeliness of the motion to quash in his initial opposition, filed March 16, 2021. His first argument was captioned, "[Appellant's] Deadline to File Motion to Quash Has Passed" (underlining omitted), and he pointed out that appellant had failed to file the motion before the last day to plead as required under section 418.10, subdivision (a). Accordingly, appellant was provided the opportunity to address the timeliness issue that was denied the appellant in Obrecht. Nevertheless, her reply in support of the motion to quash argued only that she filed the motion shortly after respondent sought a default judgment; she admitted being aware of the proceeding and the "alleged purported improper service" but offered no explanation for her failure to move to quash in a timely fashion.
Furthermore, and again in contrast to Obrecht, the trial court in the present case did not implicitly find good cause for the late filing of the motion to quash. Instead, the court indicated that its decision on the motion to vacate the default judgment depended on the evidence regarding the service of process, explaining, "If the Court determines that the summons and [P]etition were correctly served, I am simply going to dismiss the motions and allow the judgment to remain in place....If I determine that they weren't served correctly, then I will grant the motion to set aside and we'll have to start all over again." Thus, the court effectively declined to independently address the motion to quash; instead the court indicated it would consider both motions simultaneously and find cause to vacate the default judgment if appellant had not been served. Accordingly, the Obrecht decision does not show error in entry of the default judgment in this case. And, because the default judgment was properly entered in March 2021 and appellant has shown no basis for relief from that judgment, she was not improperly denied an opportunity to respond after denial of the motion to quash in September.
An additional, possibly dispositive, distinction between the present case and Obrecht is that the motion to quash in this case was not filed until after entry of default. "[A] party who is in default is barred from further participation in the proceedings." (Siry Inv., L.P. v. Farkhondehpour (2022) 13 Cal.5th 333, 343; see also Garcia v. Politis (2011) 192 Cal.App.4th 1474, 1479.) Arguably, that meant appellant had no right to file a motion to quash and could only seek to vacate the default. (Weil & Brown, et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶5:116 ["Once default is entered by the clerk, defendant's right to appear in the action thereafter is cut off. The only motion defendant can file is a motion to be relieved from default or to set aside the default judgment if judgment has been entered."].) We need not, however, rely on that ground, given the clear untimeliness of the motion to quash.
II. Appellant's Rule 1.100 Request
Appellant also argues the trial court erred in proceeding with the September 28, 2021 evidentiary hearing before resolving her request under rule 1.100. Rule 1.100 "advances the court policy 'to ensure that persons with disabilities have equal and full access to the judicial system.' ([R]ule 1.100(b).) To fulfill that purpose, rule 1.100(b) requires each superior court and appellate court to designate at least one person to be the ADA coordinator to address requests for accommodations. Rule 1.100(c) permits requests for accommodations to be made ex parte to the ADA coordinator, but requires they be made 'as far in advance as possible, and in any event must be made no fewer than 5 court days before the requested implementation date.' The court has discretion to waive this deadline. (Id., rule 1.100(c)(1), (3).)" (In re Marriage of James &Christine C. (2008) 158 Cal.App.4th 1261, 1272-1273.) An accommodation may, where appropriate, include continuance of trial. (Id. at pp. 1275-1276.)
In the present case, appellant has not shown her request seeking continuance of the September 28, 2021 continued evidentiary hearing as an accommodation was timely. Appellant admits the request was presented, at best, just before the court closed on September 27. Appellant fails to argue in her briefs on appeal that her request was in compliance with the five-day timeline, despite respondent's argument regarding the requirement in its brief on appeal. And appellant does not claim she asked the trial court to waive the five-day requirement or, much less, that the court abused its discretion in declining to do so. Because appellant has not shown her rule 1.100 request was timely, she fails to show the court erred in proceeding with the September 28 hearing without addressing the request.
Because appellant has failed to show error in this respect, she has also failed to show the trial court improperly deprived her of an opportunity to be heard at the September 28, 2021 hearing. And appellant has not shown the trial court erred in finding she was served the summons and Petition based on the evidence before it. Appellant also argues the trial court failed to deny her request in writing, as required by rule 1.100(e)(2). However, assuming that requirement applied in the circumstances of this case, appellant has not shown she was prejudiced by the absence of a written order, given the untimeliness of the motion. Finally, we do not address any argument that appellant "was not represented by counsel in relation to the motion to quash," because that argument was presented for the first time in appellant's reply brief. (Proctor v. Vishay Intertechnology, Inc. (2013) 213 Cal.App.4th 1258, 1273-1274.)
III. Conclusion
In the present case, appellant was provided ample opportunity to respond to the Petition, to file a motion to quash service before entry of default, to seek relief from default before entry of the default judgment, and to move to set aside the default judgment. Appellant has not shown the trial court erred in the rulings challenged on appeal, including denial of her motion to vacate the default judgment, denial of her motion to quash service, failure to address her untimely rule 1.100 request, award of $450 in sanctions against appellant's counsel, award of sanctions under Family Code section 271, and denial of appellant's motion for a new trial.
We deny both parties' requests for awards of attorney fees on appeal.
DISPOSITION
The trial court's orders are affirmed. Costs on appeal are awarded to respondent.
We concur. JACKSON, P. J., BURNS, J.