From Casetext: Smarter Legal Research

Bouma v. Ramirez

California Court of Appeals, Third District, San Joaquin
Mar 3, 2008
No. C053909 (Cal. Ct. App. Mar. 3, 2008)

Opinion


WENDY BOUMA, Plaintiff and Respondent, v. HENRY RAMIREZ, Defendant and Appellant. C053909 California Court of Appeal, Third District, San Joaquin March 3, 2008

NOT TO BE PUBLISHED

Super. Ct. No. CV027992

HULL, J.

Defendant Henry Ramirez appeals from the trial court’s order denying his motion to set aside a default judgment (Code Civ. Proc., § 473; further section references that follow are to the Code of Civil Procedure).

FACTS AND PROCEEDINGS

Plaintiff Wendy Bouma and Ramirez lived together in an unmarried romantic relationship between 1997 and 2005.

After their relationship dissolved, Bouma brought this action. She alleged that in 1997 the parties entered into an express oral, nonmarital relationship agreement in which they agreed to treat as joint property their respective earnings, income, savings, retirement, and any other property acquired by them while they lived together. She further alleged that the parties had thereby acquired significant joint property during their relationship, including equity in a residence on Burgundy Drive in Lodi, furniture and furnishings, and savings. The complaint sought an accounting and an order awarding Bouma half of the joint property acquired during their nonmarital relationship.

The proof of service in the file includes the declaration by a licensed private investigator and registered process server that he personally served Ramirez with the summons, complaint and related documents on December 17, 2005, at 2731 East Anita Street in Stockton.

When Ramirez failed to respond to the complaint, the clerk granted Bouma’s request for entry of his default on January 20, 2006. A copy of the default was mailed to Ramirez the same day at both the East Anita Street and Burgundy Drive addresses.

Thereafter, the matter was set for a hearing on Bouma’s request for entry of a default judgment. Following a March 16, 2006, hearing at which Ramirez failed to appear, the court entered a judgment (among other things) directing Ramirez to pay Bouma half the value of the equity in the Burgandy Drive house within 90 days or to allow Bouma to arrange for its sale; transfer the utilities for the Burgandy Drive house into his name; and remove Bouma’s name from their auto insurance policy. The judgment also divided the parties’ interest in two vehicles and two time shares, and awarded certain Christmas decorations to Bouma. Finally, it provided that, upon satisfaction of these orders, Bouma must return to Ramirez the unused engagement and wedding rings in her possession. A copy of the notice of entry of judgment and judgment was mailed to Ramirez at both the East Anita Street and Burgundy Drive addresses on May 5, 2006.

More than a month later, Bouma moved for an order compelling Ramirez’s compliance with the judgment. She complained that Ramirez had failed to pay her half of the value of the equity in the Burgandy Drive house, and had yet to refinance or list the property for sale. She sought an order directing him to cooperate with the sale of the real property by executing all documents required to effectuate the sale, and constraining him from interfering with the sales process by continuing (for example) to change the locks on the house.

Ramirez opposed the motion, disputing that Bouma had any interest in the Burgandy Drive house, and sought an order vacating the default judgment.

He also brought a separate ex parte motion to set aside the default judgment (§ 473, subd. (b)), on the grounds it was entered as a result of his mistaken belief he need not respond to the complaint. In a supporting declaration, Ramirez averred that “[t]he civil complaint, summons, and some other documents were handed to a person, not me, at my mother’s residence on December 17, 2005. I was not present at the time the documents were left. After learning of the documents, I asked various non-lawyers I believed to be knowledgeable and reliable as to what I needed to do regarding the documents left for me. I was advised that because the documents were not handed to me personally I need not respond in any way. As a result I did not respond to the civil complaint and did not seek legal counsel at that time.”

After a hearing on both motions, the court denied Ramirez’s motion to set aside the default judgment, and granted Bouma’s motion to compel his compliance with the judgment.

DISCUSSION

I

Standard of Review

We review a trial court ruling on a motion to vacate a judgment pursuant to section 473, subdivision (b) on the grounds of “mistake, inadvertence, surprise, or excusable neglect” for an abuse of discretion. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.) The appropriate test for an abuse of discretion is whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered. (In re Marriage of Connolly (1979) 23 Cal.3d 590, 598.) Appellate courts will disturb discretionary trial court rulings only upon a showing of a clear case of abuse and a miscarriage of justice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 331.)

II

The Trial Court Did Not Abuse its Discretion in Denying the Motion to Vacate Default Judgment

Ramirez contends the trial court abused its discretion in refusing to set aside the default judgment against him because he mistakenly believed he did not need to respond to the complaint, and he was denied the opportunity to defend on the merits.

We first note that the record indicates Ramirez never filed a proposed answer or other responsive pleading. Section 473, subdivision (b) requires a motion for relief from a default judgment to be “accompanied by a copy of the answer or other pleading proposed[.]” It states further that without such a filing “the application shall not be granted[.]” (Ibid., italics added.) This court, in an opinion by then Presiding Justice Puglia, has held the provision is mandatory and jurisdictional. (Puryear v. Stanley (1985) 172 Cal.App.3d 291, 294-295; see 8 Witkin, Cal. Procedure (4th ed. 1997) Attack on Judgment in Trial Court, § 183, p. 690, and cases cited.) We note that, some courts have differed with Puryear as to whether the statutory requirement to file both the motion and the proposed responsive pleading within six months after the judgment is also jurisdictional. (See County of Stanislaus v. Johnson (1996) 43 Cal.App.4th 832, 834-836; Job v. Farrington (1989) 209 Cal.App.3d 338, 340-341; accord, Hu v. Fang (2002) 104 Cal.App.4th 61, 65.) Neither these decisions nor any others, however, have held that a trial court has jurisdiction to grant relief to a party who has not filed a proposed responsive pleading.

Ramirez’s motion to vacate the default judgment includes no proposed responsive pleading; rather, it asks the court that he “be granted thirty (30) days from the date of the Court’s Order approving [his set-aside motion] in which to file a responsive pleading to Plaintiff’s civil complaint.” But without a proposed responsive pleading on file or otherwise submitted, the trial court lacked jurisdiction to grant Ramirez’s motion.

Even were the court to have had jurisdiction to grant Ramirez’s motion, it did not abuse its discretion in declining to do so. The trial court was entitled to credit the process server’s declaration that Ramirez was personally served. “Issues of fact and credibility are questions for the trial court and not the reviewing court. The power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the trier of fact.” (In re Christina T. (1986) 184 Cal.App.3d 630, 639.) We defer to the trier of fact on issues of credibility and may reject testimony believed by the trier of fact “‘only when it is inherently improbable or incredible, i.e., “‘unbelievable per se,’” physically impossible, or “‘wholly unacceptable to reasonable minds.’” [Citations.]’” (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.) Because the registered process server’s declaration that he personally served Ramirez with the summons and complaint is substantial evidence of that fact, and the declaration is neither improbable, incredible nor physically impossible, we shall not upset the court’s implicit finding that Ramirez was personally served.

Moreover, Ramirez’s purported reliance on unidentified laypersons for legal advice is not the sort of mistake or excusable neglect for which relief under section 473 is available. To the contrary, it is well established that a party seeking relief under this statute must have acted with “ordinary prudence”: “Neither one’s change of mind nor his inexcusable negligence is ground for vacating a judgment. To warrant relief under section 473 a litigant’s neglect must have been such as might have been the act of a reasonably prudent person under the same circumstance. . . . It is the duty of every party desiring to resist an action or to participate in a judicial proceeding to take timely and adequate steps to retain counsel or to act in his own person to avoid an undesirable judgment. Unless in arranging for his defense he shows that he has exercised such reasonable diligence as a man of ordinary prudence usually bestows upon important business his motion for relief under section 473 will be denied. [Citation.] Courts neither act as guardians for incompetent parties nor for those who are grossly careless of their own affairs. All must be governed by the rules in force, universally applied according to the showing made. [Citation.] The law frowns upon setting aside default judgments resulting from inexcusable neglect of the complainant. The only occasion for the application of section 473 is where a party is unexpectedly placed in a situation to his injury without fault or negligence of his own and against which ordinary prudence could not have guarded. Neither inadvertence nor neglect will warrant judicial relief unless it may reasonably be classified as of the excusable variety upon a sufficient showing.” (Elms v. Elms (1946) 72 Cal.App.2d 508, 513; see also 8 Witkin, Cal. Procedure, supra, Attack on Judgment in Trial Court, § 164, pp. 669-670.)

It would not have been an abuse of discretion for the trial court to have concluded that Ramirez’s reliance on the legal advice of unidentified laypersons that he need not make any response to the complaint was not the action of a reasonably prudent person.

III

Sanctions

By separate motion, Bouma has moved for sanctions against Ramirez for filing a frivolous appeal. (§ 907.) “Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win on appeal. An appeal that is simply without merit is not by definition frivolous and should not incur sanctions.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) Although without merit, we do not find Ramirez’s appeal frivolous. Accordingly, we decline Bouma’s request for sanctions.

DISPOSITION

The judgment is affirmed. Bouma shall recover costs on appeal. (Cal. Rules of Court, rule 8.278 (a)(2).)

We concur: DAVIS , Acting P.J., NICHOLSON , J.


Summaries of

Bouma v. Ramirez

California Court of Appeals, Third District, San Joaquin
Mar 3, 2008
No. C053909 (Cal. Ct. App. Mar. 3, 2008)
Case details for

Bouma v. Ramirez

Case Details

Full title:WENDY BOUMA, Plaintiff and Respondent, v. HENRY RAMIREZ, Defendant and…

Court:California Court of Appeals, Third District, San Joaquin

Date published: Mar 3, 2008

Citations

No. C053909 (Cal. Ct. App. Mar. 3, 2008)